HomeMy WebLinkAbout051 - 05/03/2022 - AUTHORIZING THE CITY MANAGER AND THE MAYOR TO ENTER INTO AN AGREEMENT BETWEEN THE CITY OF FORT COLLIORDINANCE NO.051, 2022
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING THE CITY MANAGER AND THE MAYOR TO ENTER INTO AN
AGREEMENT BETWEEN THE CITY OF FORT COLLINS AND
THE LANDOWNERS' ASSOCIATION FOR PHANTOM CANYON RANCHES
REGARDING THE HALLIGAN WATER SUPPLY PROJECT AND TO EXECUTE
CERTAIN CONVEYANCE DOCUMENTS AND AN
AGREEMENT ATTACHED THERETO
WHEREAS, the City, through Fort Collins Utilities, is pursuing the Halligan Water Supply
Project ("Project"), which includes: the enlargement of Halligan Reservoir, also known as North
Poudre Reservoir No. 16 ("Reservoir"), which primarily entails replacing or enlarging the
Reservoir's dam; and the replacement of the diversion structure for the North Poudre Canal and
related infrastructure ("Diversion Structure") on the North Fork of the Cache la Poudre River
("North Fork"); and
WHEREAS, the City owns certain real property in and around the Reservoir acquired for
the Project; and
WHEREAS, the Landowners' Association for Phantom Canyon Ranches ("Association")
owns certain real property adjacent to the Reservoir, the Diversion Structure, and along the North
Fork; and
WHEREAS, the Association currently represents 43 members, all of whom have an
ownership interest in separate and distinct parcels of land separate and apart from land the
Association owns, but which such privately -owned land is in the vicinity of the Reservoir; and
WHEREAS, the Association wishes to minimize the impacts from the Project to its
members, Association land, and the environment; and
WHEREAS, the City is and will be seeking various permits and approvals for the Project,
and as part of the processes for those permits and approvals, the City will undertake various
environmental mitigation and enhancement activities; and
WHEREAS, the City also requires certain property rights related to the Project to access
the Reservoir, the Diversion Structure, and the North Fork through land the Association owns; and
WHEREAS, the City has contemplated the enlargement of Halligan Reservoir since the
1980s, and the City and the Association and its predecessors have previously had various
agreements and understandings associated with the enlargement of Halligan Reservoir; and
WHEREAS, in the past several years, City staff and the Association have worked
collaboratively to discuss and work through relevant issues related to the Project and to negotiate
the Agreement Between the City of Fort Collins and the Landowners' Association for Phantom
Canyon Ranches, including its exhibits A-1, A-2, B, C, D-1, D-2, D-3, and E, a copy of which is
attached as Exhibit "A" (the "Agreement"); and
WHEREAS, the Agreement provides for certain conveyances of real property from the
Association to the City and from the City to the Association; and
WHEREAS, the resolution of the various items addressed in the Agreement will benefit
the City and its residents and Fort Collins Utilities and its ratepayers, including by facilitating the
acquisition of real property interests needed for the Project, facilitating the more timely permitting
of the Project, and resolving outstanding disputes that would divert resources from the Project and
other work that would be more beneficial to the City and its residents and Fort Collins Utilities
and its ratepayers;
WHEREAS, City staff anticipates needing to work with the Association further on
subsequent phases of the Project, including Phase 2 (Construction) and Phase 3 (Operation and
Maintenance), and desires that the Agreement is one step in an ongoing and mutually -beneficial
relationship between the City and the Association and its members; and
WHEREAS, the City Manager and City staff have recommended approval of the
Agreement by the City Council.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That the City Council finds, pursuant to Section 23-111(a) of the City Code,
that the disposition of the subject real property interests described in the Agreement pursuant to an
agreement that is substantially similar to the attached Agreement is in the best interests of the City.
Section 3. That the City Council finds, pursuant to Section 23-111(b) of the City Code,
that the disposition of the subject real property interests described in the Agreement pursuant to an
agreement that is substantially similar to the attached Agreement will not materially impair the
viability of the water utility system as a whole and that it will be for the benefit of the citizens of
the City.
Section 4. That the City Council finds, pursuant to Section 23-1 l4 of the City Code,
that the disposition of the subject real property interests described in the Agreement pursuant to an
agreement that is substantially similar to the attached Agreement will result in the City receiving
a value in an amount equal to or greater than the fair market value of such land.
Section 5. That the City Council authorizes the City Manager to take the steps
necessary to execute the Agreement in a form that is substantially similar to the Agreement, with
such modifications and additional terms and conditions as the City Manager, in consultation with
the City Attorney, determines to be necessary and appropriate to protect the interests of the City
or effectuate the purposes of this Resolution.
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Section 6. That the Mayor is hereby authorized to execute such documents of
conveyance as are required to carry out the terms of the Agreement as set forth therein, upon the
occurrence of the conditions for such conveyances as set forth in the Agreement.
Section 7. That the City Council hereby authorizes the City Manager to execute a lease
agreement substantially in the form of Exhibit E to the attached Agreement to grant the leasehold
interest as described therein, in accordance with and upon the occurrence of the conditions for such
lease agreement as set forth in the Agreement.
Introduced, considered favorably on first reading, and ordered published this 19th day of
April, A.D. 2022, and to be presented for final passage on the 3rd day off, A.D. 2022.
Passed and adopted on final reading on the 3rd day of May, A.D. 2022.
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EXHIBIT A
AGREEMENT BETWEEN THE CITY OF FORT COLLINS AND
THE LANDOWNERS' ASSOCIATION FOR PHANTOM CANYON RANCHES
REGARDING THE 14ALLIGAN WATER SUPPLY PROJECT
This Agreement (the "Agreement"), dated this , is entered into
by and between the City of Fort Collins, Colorado, a home -rule municipality ("City"), and the
Landowners' Association for Phantom Canyon Ranches, a Colorado non-profit corporation
("Association"). Each a "Party" and collectively the "Parties."
RECITALS
A. The City, through Fort Collins Utilities, is pursuing the Halligan Water Supply Project
("Project" )..1 The Project includes.2: the enlargement of Halligan Reservoir, also known as North
Poudre Reservoir No. 16 ("Reservoir"), which primarily entails replacing or enlarging the
Reservoir's dam ("Reservoir Dam");. and the replacement of the diversion structure for the North
Poudre Canal and related infrastructure ("Diversion Structure") 4 on the North Fork of the Cache
la Poudre River ("North Fork").
B. The Association owns certain real property adjacent to the Reservoir, the Diversion
Structure, and along the North Fork, the approximate locations of which are shown on Exhibit A-
1 attached hereto and incorporated herein (the "Association Land"). The Association Land
includes the Small Association Parcels (as such term is defined in Paragraph 7.1.1).
C. The City also owns certain real property in and around the Reservoir acquired pursuant to:
the (1) Warranty Deed, dated January 22, 2004, recorded with the Larimer County Clerk and
Recorder at Reception No. 2004-0077821; and the (2) Bargain and Sale Deed, dated January 22,
2004, recorded with the Larimer County Clerk and Recorder at Reception No. 2004-0077822
(collectively, the "City Land"). For illustrative purposes only, the approximate locations of the
Reservoir, the Diversion Structure, the City Land, and the Association Land nearby are shown on
Exhibit A-1 attached hereto and incorporated herein.
D. The City is and will be seeking various permits and approvals for the Project. As part of
the processes for those permits and approvals, the City may undertake various environmental
mitigation and enhancement activities. The City also requires certain property rights related to the
1 In the federal permitting process for the Project, the enlargement of Halligan Reservoir and the related items noted
above that are the subject of this Agreement are part of the City's Proposed Action. For the purposes of this
Agreement, none of the other alternatives analyzed in the federal permitting process are part of the Project.
z In this Agreement, "include" signifies a list that is not necessarily exhaustive. E.g., Lyman v. Town of Bow Mar,
188 Colo. 216, 222, 533 P.2d 1129, 1133 (1975).
' The Reservoir is an on -channel reservoir located on the North Fork, in portions of Sections 29, 32, 33, and 34,
Township 11 North, Range 71 West of the 6th P.M. The enlarged Reservoir will also extend into portions of
Sections 27 and 28, Township 11 North, Range 71 West of the 6th P.M. The Reservoir Dam (for the current
Reservoir and the enlargement) is located in the NE1/4 of the SWIA of Section 34, Township 11 North, Range 71
West of the 6' P.M.
a The Diversion Structure is located in the North Fork in the SE1/4 of Section 12, Township 10 North, Range 71
West of the 6th P.M.
Page 1 of 22
EXHIBIT A
Project to access the Reservoir, the Diversion Structure, and the North Fork through
Association Land.
E. The Association currently represents forty-three (43) members (the "Members") all of
whom have an ownership interest in separate and distinct parcels of land separate and apart from
the Association Land, but which such privately owned land is in the vicinity of the Reservoir. The
Association and its Members have historically shown a commitment to the preservation of land in
and around the Reservoir. For instance, many of the lands owned by the Association and its
Members are subject to conservation easements, and the Association has historically cared for the
Reservoir and preserved and enhanced the habitat of the surrounding lands owned by the
Association. The Association wishes to minimize the impacts from the Project to its Members,
Association Land, and the environment.
F. The City has contemplated the enlargement of Halligan Reservoir since the 1980s. The
City and the Association and its predecessors have previously had various agreements and
understandings associated with the enlargement of Halligan Reservoir. The City's intent with this
Agreement includes honoring the spirt of those previous agreements and understandings in the
context of the current Project.
G. The City and the Association have negotiated this Agreement to address certain
requirements of the City and certain concerns of the Association. This Agreement contains mutual
promises and consideration between the Parties. As set forth herein, the City and the Association
anticipate that subsequent agreements regarding the Project will be negotiated and completed, but
that neither Party is obligated to negotiate or enter into any subsequent agreements. As set forth
herein, to the greatest extent reasonably practicable as determined by the City, the City shall not
seek to acquire Association Land by condemnation or otherwise, beyond that which is expressly
referenced in this Agreement. Maps showing the lands that are the subject of the various
conveyances contemplated in this Agreement are attached as Exhibit A-2.
H. The Parties further acknowledge and recognize the disparate bargaining power between the
City and the Association inasmuch as the City may acquire the Association Land, and any other
rights it may require, by eminent domain, whereas any remedy available to the Association may
be greatly limited in scope and availability. Therefore, the Parties desire to set forth the terms and
conditions of this Agreement in such a manner that seeks to put the Parties in substantially the
same bargaining position, which includes the obligation of the City to negotiate and deal with the
Association in good faith, because the City has not waived, and will not waive under this
Agreement, the City's powers related to eminent domain.
AGREEMENT
1. INCORPORATION OF RECITALS. The foregoing recitals are hereby incorporated as
if fully restated in their entirety.
2. GOOD FAITH AND APPROVAL.
Page 2 of 22
EXHIBIT A
2.1 The Parties agree to act in good faith in their work pursuant to this Agreement and
any future agreement contemplated in this Agreement.
2.2 The City acknowledges that in order for the Association to execute any agreement
that is not specifically contemplated in this Agreement, but for which this Agreement
obligates the Parties to negotiate as required for the Project, the Association must obtain
the approval of its Board of Directors in accordance with the requirements of the
Association's controlling documents, including its bylaws and the Declaration of
Covenants, Conditions and Restrictions for Phantom Canyon Ranches encumbering the
Association Land, and/or applicable law.
2.3 The Association acknowledges that in order for the City to execute any agreement
that is not specifically contemplated in this Agreement, but for which this Agreement
obligates the Parties to negotiate as required for the Project, the City may need to obtain
approval from City Council pursuant to City Code and other applicable law.
3. OVERVIEW. The Project is generally proceeding in three conceptual phases: Phase 1
(Permitting and Design); Phase 2 (Construction); and Phase 3 (Operation and Maintenance). This
Agreement is thus organized accordingly.
4. PHASE 1 (PERMITTING AND DESIGN). Phase 1 generally concerns the City seeking
the necessary information, permits, and approvals to construct the Project. Phase 1 generally
includes site visits and data collection related to permitting processes and preliminary design work
for the enlargement of the Reservoir and for the replacement of the Diversion Structure.
4.1. Existing City Access Rights. The following is a brief identification of
existing access rights the City has acquired from the Association. Except as set
forth in Paragraph 8, nothing in this Agreement modifies these existing access
rights.
4.1.1. Under the Lease Agreement Between the City of Fort Collins and
the Landowners Association for Phantom Canyon Ranches for Halligan
Reservoir and Adjacent Properties, dated March 9, 2017 ("2017 Lease"),
the City has the right to use Meadow Creek Road pursuant to Paragraph 4.c
of said 2017 Lease.
4.1.2. Under the Temporary Access Easement Deed With Terms and
Conditions (Phase 1 (Permitting and Design) of the Halligan Water Supply
Project (Halligan Reservoir and Dam)), dated May 26, 2020 ("Reservoir
TAE") the Association granted the City a temporary access easement over
Meadow Creek Road, Three Corner Gate Road, and Halligan Meadows
Road for Phase 1. The Reservoir TAE was recorded with the Larimer
County Clerk and Recorder on June 23, 2020 at Reception
No. 20200045062.
Page 3 of 22
EXHIBIT A
4.1.3. Under the Temporary Access Easement Deed With Terms and
Conditions (Phase 1 (Permitting and Design) of the Halligan Water Supply
Project (North Poudre Canal Diversion Structure)), dated August 6, 2020
("Diversion TAE"), the City has certain rights to use a portion of the
Association Land at the diversion structure for the North Poudre Canal for
Phase 1, subject to those conservation rights held by The Nature
Conservancy ("TNC") pursuant to that certain Deed of Conservation
Easement dated December 22, 1987 and recorded at Reception No.
87072156 in the real property records of Larimer County ("TNC
Easement"). The Parties acknowledge that TNC has reviewed and
consented to the Association granting the Diversion TAE to the City. The
Diversion TAE was recorded with the Larimer County Clerk and Recorder
on August 26, 2020 at Reception No. 20200067488.
4.2. Temporary Access Easement Granted to the City. The Association
hereby agrees to grant to the City the temporary access easement identified in
Paragraph 4.2.1 ("Phase 1 River Access Easement"). The land underlying the
Phase 1 River Access Easement is subject to a conservation easement held by TNC.
The City has worked extensively with TNC representatives, which have indicated
that the Phase 1 River Access Easement is acceptable to TNC. Nevertheless, if
TNC objects to or proposes revisions to the Phase 1 River Access Easement, the
Association may in its reasonable discretion object to such TNC proposed revisions
and thereafter the Parties shall use commercially reasonable efforts to agree upon
the form of the Phase 1 River Access Easement to be recorded that is acceptable to
the City, TNC, and the Association. The conveyance of the Phase 1 River Access
Easement shall be completed as soon as practicable following the executing of this
Agreement.
4.2. L Phase 1 River Access Easement. The form of the Phase 1 River
Access Easement to be granted by the Association to the City is attached as
Exhibit B.
4.2.2. Recording. The City shall record a fully executed copy of the
Phase 1 River Access Easement with the Larimer County Clerk and
Recorder at the City's cost.
4.3. Potential Need for Additional City Access. The City has sought to
identify all of its needs for Phase 1 access through the rights granted in the 2017
Lease, Reservoir TAE, Diversion TAE, and the Phase 1 River Access Easement
(collectively, "Phase 1 Easements"). The Parties nevertheless acknowledge that, in
the course of the permitting and approval processes for the Project, unanticipated
challenges and issues may arise such that the City may need some additional
temporary access to Association Land that is outside of the scope of the Phase 1
Easements. If such a need arises, the City will first look to reasonable alternative
access that does not affect Association Land. If no such reasonable alternative
exists, the Parties agree to negotiate, in good faith, separate and distinct licenses to
Page 4 of 22
EXHIBIT A
enter and/or easement(s) apart from the Phase 1 Easements described herein, to
address such needs and any related issues, which such agreement or easement shall
include customary representations and warranties from both Parties. Any future
temporary access easements or other agreements that will encumber Association
Land, shall be surveyed, if the Association deems it necessary, at the City's cost, in
accordance with Paragraph 7.4.1.
4.4. Right to Terminate During Phase 1. The Parties acknowledge that the
permitting and approval processes for the Project include some level of uncertainty
regarding the ultimate ability of the City to enlarge the Reservoir and replace the
Diversion Structure. If the City abandons the enlargement of the Reservoir, the
City may terminate this Agreement by providing written notice to the Association
pursuant to Paragraph 11.8. In such event, the City would be obligated to:
(a) file with the Larimer County Clerk and Recorder
(1) a notice of abandonment of the Phase 1 Easements, except the
2017 Lease, and
(2) a notice of termination of this Agreement, including the options
described in Paragraph 7; and
(b) if the City has acquired the Small Association Parcels as described in
Paragraph 7.1.1, the City shall convey such land back to the Association by
quitclaim deed.
Any termination of the 2017 Lease would be completed pursuant to its terms.
5. PHASE 2 (CONSTRUCTION). Phase 2 generally concerns the construction work
related to the enlargement of the Reservoir and the replacement of the Diversion Structure.
5.1. Coordination Regarding Construction. The City, in its sole discretion,
intends to begin construction under Phase 2 once it has received all required permits
and approvals for the Project and after the time to appeal such permits and
approvals has expired. The City agrees to regularly update the Association on the
status of these permitting and approval processes via monthly written
correspondence, which may be by email.
5.2. Inundation. With respect to the Reservoir adjacent to Association Land,
the City currently owns in fee the land that is currently inundated and that will be
inundated below the ordinary high water mark of the Reservoir as the City plans to
enlarge it. However, the Colorado Division of Water Resources now requires
reservoir owners to own in fee or have easements for lands that would be inundated
by the inflow design flood surcharge, which will be above the ordinary high water
mark of the enlarged Reservoir. Rule 7.9.3.3, 2 CCR 402-1, Rules and Regulations
for Dam Safety and Construction. There is currently some uncertainty about the
exact extent of the inflow design flood surcharge for purposes of these regulations.
The Parties nevertheless acknowledge that the City may require easements from the
Association related to the inflow design flood surcharge due to this and related
regulations.
Page 5 of 22
EXHIBIT A
5.3. Power Lines Near the Reservoir. The Parties acknowledge that certain
power lines are located south of the current high water line of the Reservoir in
Section 33, Township 11 North, Range 71 West of the 6th P.M., and that upon the
enlargement of the Reservoir, these power lines may be located close to or be
inundated by the Reservoir, and consequently may need to be relocated in
coordination with their owner, the Poudre Valley Rural Electric Association, Inc.
("PVREA"). The City and the Association agree to negotiate in good faith to define
a plan for the relocation of portions of the power lines that are deemed
compromised by the Reservoir enlargement in a way that minimizes impacts to the
Association and the Members to the greatest extent practical while ensuring that
the City will be able to complete the Project in a timely and cost-effective manner.
Any agreement or other document that is to be executed by either of the Parties in
connection with the relocation of the power lines must include the consent and
approval of the PVREA as a condition to such execution.
5.4. Subsequent Negotiations for Temporary Construction Easements to
the City and Related Matters. The Parties acknowledge that the City will require
temporary construction easements across the Association Land. However, as the
design work continues, there are some uncertainties regarding the precise extent
and scope of such easements. Therefore, and in consideration of the foregoing, the
City and the Association agree to negotiate in good faith to define the extent and
scope of such temporary construction easements in a way that reduces impacts to
the Association and the Members to the greatest extent reasonably practicable while
ensuring that the City will be able to complete the Project in a timely and cost-
effective manner. The negotiation will also ensure that the easements eventually
acquired by the City are no greater than what the City needs to complete the Project
in a timely and cost-effective manner.. s Any future temporary construction
easements or other future agreements or plans contemplated under this Section 5.4
shall include customary representations and warranties from both Parties. Any
future temporary construction easements or other agreements that will encumber
Association Land, shall be surveyed at the City's cost, if the Association deems it
necessary, in accordance with Paragraph 7.4.1.
6. PHASE 3 (OPERATION AND MAINTENANCE). Phase 3 generally begins following
the completion of construction and concerns the City operating and maintaining the Reservoir Dam
and Reservoir. This Phase 3 will likely also include the permanent maintenance of some measuring
devices on the Reservoir, North Fork, and Diversion Structure to satisfy environmental monitoring
requirements under the governmental permits and approvals. Phase 3 will require that the City
have access to the Reservoir and the North Fork (the "Phase 3 Access") through permanent access
easements across Association Land.
6.1. Phase 3 Access Issues. The negotiation of any future Phase 3 Access easement or
agreement contemplated under this Paragraph 6 shall consider in good faith the needs and
desires of the Parties and may include the consideration of reasonable limits on City access.
'Nothing in this Agreement shall be deemed as a waiver of the City's powers related to eminent domain. E.g.,
Wheat Ridge Urban Renewal Authority v. Cornerstone Group XII, LLC, 176 P.3d 737, 742 (2007).
Page 6 of 22
EXHIBIT A
Any Phase 3 Access easement or other agreement that will encumber Association Land,
shall include customary representations and warranties from both Parties and be surveyed,
at the City's cost, in accordance with Paragraph 7.4.1.
6.2. Coordination Regarding the Completion of Construction. The City intends to
complete construction in a timely and expedient manner. The City agrees to update the
Association on the status of construction no less frequently than monthly in writing, which
may be by email.
6.3. Subsequent Negotiations for Permanent Access Easements to the City and
Related Matters. As the design work continues and as the operational and maintenance
requirements become clearer as governmental permits and approvals are acquired, there
are some uncertainties regarding the precise extent and scope of any Phase 3 Access needs.
When considering Phase 3 access, the City will first look to reasonable alternative access
that does not affect Association Land. If no such reasonable alternatives exist (such as, by
way of example only, if a governmental permit or approval requires water sampling on
Association Land), the City and the Association agree to negotiate in good faith to define
the extent, scope, terms and obligations of the Phase 3 Access to (1) reduce impacts to the
Association and its Members to the greatest extent reasonably practicable while still
allowing the City to complete the Project in a timely and cost-effective manner, and
(2) ensure that the easements eventually acquired by the City are no greater than what the
City reasonably requires to operate and maintain the Project in a timely and cost-effective
manner.
7. OPTIONS GRANTED TO THE CITY AND THE ASSOCIATION. In exchange for
the mutual promises contained in this Agreement and other good and valuable consideration, the
receipt and adequacy of which the City hereby acknowledges, the Association hereby grants the
City and the City hereby grants the Association certain options pursuant to the terms and conditions
of this Agreement.
7.1. Option Granted to the City. For and in consideration for the City's execution and
delivery of this Agreement, the Association hereby grants to the City the options to acquire
the following described property rights from the Association as described in
Paragraph 7.1.1.
Following the execution of this Agreement, the City shall be entitled to contact the
Association to exercise this option ("Fee Option Exercise") and to schedule a closing (the
"Fee Closing") within sixty-three (63) days of such notice to the Association that is
mutually agreeable to the City and the Association. At the Fee Closing, no additional
monetary payment will be required because it has been included in the payments set forth
in Paragraph 11.1.1.
7.1.1. Fee Title to the Small Association Parcels, Located North and South of
the Reservoir (in the N1/2 of Section 34). The Association hereby agrees to grant
the City fee title to all of the LAPCR lands in the NW1/4 of Section 34, Township
11 North, Range 71 West of the 6th P.M., being approximately 3.61 acres (the
Page 7 of 22
EXHIBIT A
"Small Association Parcels"). The Association would convey the portion of the
Small Association Parcels located north of the Reservoir subject to a restrictive
covenant precluding future development. The portion of the Small Association
Parcels located south of the Reservoir would not be subject to any restrictive
covenant as they will be impacted by the new Reservoir Dam and its construction.
The form of the conveyance documents for the Small Association Parcels are
attached hereto as Exhibit C.
7.2. Options Granted to the Association. For and in consideration for the
Association's execution and delivery of this Agreement, the City hereby grants to the
Association three options to acquire the following described property rights from the City
as described in Paragraphs 7.2.1, 7.2.2, and 7.2.3.
As soon as the Colorado Division of Water Resources has accepted construction of the new
Reservoir Dam pursuant to its Rules and Regulations for Dam Safety and Dam
Construction, 2 CCR 402-1 (or successor regulations) ("Reservoir Dam Acceptance"), but
no later than fourteen (14) days.6 after the City has received written notice of the Reservoir
Dam Acceptance, the City shall deliver written notice to the Association and contact the
Association to schedule a closing (the "Option Closing") within sixty-three (63) days of
such notice to the Association that is mutually agreeable to the City and the Association.
At the Option Closing, monetary payment shall be due as set forth in Paragraph 11.1.2.
The Association may then exercise all or any one of the following three (3) options at any
time prior to the Option Closing (each an "Option" and collectively the "Options").
The Association acknowledges that the land that is subject to the Options will be impacted
to some degree by City activities during Phase 1 (Permitting and Design) and will be
impacted by City activities during Phase 2 (Construction), including through the widening
of roads. Except as otherwise expressly stated in this Agreement, the Association will
acquire such land under the Options as it exists at the time of conveyance.
7.2.1. Fee Title to a Portion of Certain City -Owned Land South of the
Reservoir Dam (in the S1/2 of Section 34). The City would convey to the
Association fee title to up to 121 acres of the land that the City owns south of the
Reservoir in the SW1/4 of Section 34, Township 11 North, Range 71 West of the
6th P.M., being all or part of the approximately 121 acres identified on Exhibit A-
2 (the "Subject 121 Acres"), with the City reserving to itself: (a) a non-exclusive
access easement across the Fee Parcel from the west (the "West Access Easement"),
and (b) a non-exclusive access easement along the North Fork (the "North Fork
Access Easement"). The entirety or portion of the Subject 121 Acres to be
conveyed to the Association is referred to as the "Fee Parcel." The City would
convey the land subject to a restrictive covenant precluding future development and
certain types of grazing activities and would retain ownership of the remainder of
its land in Section 34. The proposed conveyance documents for the Fee Parcel are
attached as Exhibit D-1.
6 All days in this Agreement are calendar days — as opposed to business days — unless stated otherwise.
Page 8 of 22
EXHIBIT A
7.2.1.1. The price for the Fee Parcel, to be due as set forth in
Paragraph 11.1.2, shall be calculated as: the product of $3,000 per acre
multiplied by the area of the Fee Parcel (with the area being determined by
the survey to be completed pursuant to Paragraph 7.4); less the monetary
value the City is retaining in the Fee Parcel, which shall be calculated as the
product of $3,000 per acre multiplied by 0.5 multiplied by the sum of the
areas of the West Access Easement and the North Fork Easement (with the
areas being determined by the surveys to be completed pursuant to
Paragraph 7.4). For the sole purpose of determining the area of the North
Fork Easement to calculate the price under this paragraph, the "high water
line along each of its banks" referenced in the North Fork Easement shall
be assumed to be the top of bank.
7.2.2. Easement for the Association to Access Certain City -Owned Land
South of the Reservoir Dam (in the SW1/4 of Section 34) Along the North Fork.
The City would convey to the Association a perpetual easement for recreation to
access certain land that the City owns along the North Fork south of the Reservoir
in the SW1/4 of Section 34, Township 11 North, Range 71 West of the 6th P.M
(the "River Access Easement"). These rights to access the subject land for
recreation under the River Access Easement are exclusive only in the sense that the
City shall not use the subject land for recreation or recreational access and shall not
grant recreational rights or recreational access to others on the same land. The City
shall otherwise retain the right to access and use the subject land for any purpose
that does not violate the Association's rights under the River Access Easement. The
proposed conveyance documents for the River Access Easement are attached as
Exhibit D-2, which includes: a general description of the land to be subject to the
easement, and terms and conditions that may limit the Association, and the
Members' use of the land to be subject to the easement. Prior to the Option Closing,
the City will legally define the "Maintenance and Operation Zone" identified in
Paragraph 5 of the attached form of conveyance to meet applicable legal
requirements and the City's needs associated with the Project.
7.2.2.1. The price for the River Access Easement, to be due as set
forth in Paragraph 11.1.2, shall be calculated as the product of $3,000 per
acre multiplied by 0.5 multiplied by the area of the River Access Easement
(with the area being determined by the survey to be completed pursuant to
Paragraph 7.4). For the sole purpose of determining the area of the River
Access Easement to calculate the price under this paragraph, the "high water
7 For reference and clarification purposes only, the Parties acknowledge a conflict between the description of the
City Land (as described in the deeds identified in Recital B) and the description of land owned by the Association in
its various deeds. Specifically, the City owns fee title to certain lands in Sections 33 and 34, Township 11 North,
Range 71 West of the 6th P.M. lying below the 110-foot contour line of Halligan Reservoir. However, some of the
Association's deeds inaccurately indicate that the Association owns fee title to certain lands in these sections to the
historical high-water line of Halligan Reservoir, which is approximately the 70-foot contour of Halligan Reservoir.
The Parties agree that the City owns fee title to such land and is thus able to grant an easement on such land.
Page 9 of 22
EXHIBIT A
line along each of its banks" referenced in the River Access Easement shall
be assumed to be the top of bank.
7.2.3. Easement for the Association to Access City -Owned Land Along the
Reservoir's Shore West of the Reservoir Dam (in Section 33 and in the S1/2 of
Section 34). The City would convey to the Association a perpetual easement for
recreation and livestock grazing (excluding domesticated sheep and/or goats) to
access certain land that the City owns along the Reservoir's shore west of the
Reservoir Dam in Section 33 and in the S1/2 of Section 34, Township 11 North,
Range 71 West of the 6th P.M. (the "Shoreline Easement"). These rights to access
the subject land for recreation under the Shoreline Easement are exclusive only in
the sense that the City shall not use the subject land for recreation, recreational
access, or livestock grazing and shall not grant recreational rights, recreational
access, or livestock grazing rights to others on the same land. The City shall
otherwise retain the right to access and use the subject land for any purpose that
does not violate the Association's rights under the Shoreline Easement, as set forth
in greater detail in the attached draft Shoreline Easement. The proposed
conveyance documents for the Shoreline Easement are attached hereto as
Exhibit D-3, which includes: a general description of the land to be subject to the
Shoreline Easement, and terms and conditions that may limit the use of the land by
the Association and its Members. Prior to the Option Closing, the City will legally
define the "Maintenance and Operation Zone" identified in Paragraph 5 of the
attached form of conveyance to meet applicable legal requirements and the City's
needs associated with the Project.
7.2.3.1. The price for the Shoreline Easement, to be due as set forth
in Paragraph 11.1.2, shall be calculated as the product of $3,000 per acre
multiplied by 0.5 multiplied by the area of the Shoreline Easement (with the
area being determined by the survey to be completed pursuant to
Paragraph 7.4).
7.3. Section 1031, Section 1033.
7.3.1 The Association may desire to exchange the Fee Parcel and the Small
Association Parcels in a tax deferred transaction under Section 1031 of the Internal
Revenue Code. Upon the Association's exercise of its Option under Paragraph
7.1.1, it shall also deliver to the City the Association's election as to whether it
desires to exchange the Small Association Parcels for the Fee Parcel in a Section
1031 exchange. Thereafter, the City agrees to cooperate with the Association in
good faith in the execution of any documents necessary to effect such transaction
under Section 1031 of the Internal Revenue Code. The City takes no position
regarding whether the Association is entitled to exchange the Fee Parcel and the
Small Association Parcels in a tax deferred transaction under Section 1031 of the
Internal Revenue Code and the Association agrees to indemnify the City for its
cooperation with any such transaction.
Page 10 of 22
EXHIBIT A
7.3.2 The Association expressly acknowledges that it is aware that under
Colorado law, the City is empowered with the right of eminent domain and that, in
the event City fails to acquire the requisite property rights from the Association for
the Project, the City may have the authority to acquire such property rights by
exercising its power of eminent domain. The Association further acknowledges
that had the Parties not entered into this Agreement and the City sought to acquire
such property rights using its eminent domain authority, the Association would
have had the right to require the City to acquire such property rights by complying
with the laws of the State of Colorado regarding eminent domain. The City, upon
the reasonable request of the Association, agrees to provide a written statement that
this Agreement is entered into under the threat or imminence of condemnation. It
is the Association's position that any closing under this Agreement qualifies for
income tax treatment under Internal Revenue Code Section 1033(g).
7.4. Surveys. The specific lands that are the subject of the options described in this
Paragraph 7 have been described in general terms but have not yet been surveyed.
Following the execution of this Agreement, the City agrees to complete the surveys
contemplated under this Agreement as soon as practicable. Consequently, the acreages
above are estimates derived from readily available maps and actual acreages may vary from
what is stated above.
7.4.1. The Parties agree that, prior to executing any conveyances under this
Agreement, the City, at its expense, shall obtain surveys of any such lands in order
to produce accurate legal descriptions for the conveyances. For the conveyances
of title in fee, ALTA Surveys (or such other survey as the Parties' respective title
insurance companies may require) shall be used. The City shall also be responsible
for obtaining any necessary third -party approvals required to complete such
surveys. The Association agrees to reasonably cooperate with and provide the City
with access to complete such surveys and to not charge the City for any access
necessary for such surveys.
7.4.2. The following are additional statements of intent to provide clarity
regarding the Parties' intended use of the lands to be conveyed. With this
conveyance, it is intended:
That the Small Association Parcels identified in Paragraph 7.1.1
constitute all of the land the Association owns in the N1/2 of Section 34;
• That the Fee Parcel shall be a single, contiguous parcel spanning from
the west section line of Section 34 to the east line of the SW1/4 of
Section 34, and beginning from the south section line of Section 34;
• That the West Access Easement identified in Paragraph 7.2.1 be limited
to maintenance, operations, repairs, and other activities that need to be
performed by the City on the Reservoir, Dam, or City -owned lands,
including various activities under different permits and approvals, and
Page 11 of 22
EXHIBIT A
for emergency purposes associated with the Project The West Access
Easement will be across permanent roads, including turnouts, that
remain in place after construction of the Project is complete, and which
roads are accessed from the Association's Halligan Meadows Road.
This easement shall not give the City any right to use the Association's
Halligan Meadows Road or other Association roads, and which rights
would need to be acquired separately;
That the North Fork Access Easement identified in Paragraph 7.2.1 be
solely for pedestrian access and limited to purposes related to
environmental, fish, water quality, and related monitoring and
compliance activities associated with permits and approvals for the
Project, subject to various terms and conditions in Exhibit D-1; and
That the City retains ownership of. the land where the existing U.S.
Geological Survey stream gage (06751150) on the North Fork below
the Reservoir Dam is located, the land where the existing dirt road down
to the North Fork is located; and the land where any infrastructure
associated with the enlarged Reservoir (e.g., Dam, spillway, stilling
basin, control house, bridge over the North Fork, etc.) is located.
7.5. Title Insurance/Evidence of Title.
7.5.1. Within fourteen (14) days of the Fee Option Exercise or the Reservoir Dam
Acceptance, as applicable, the City will provide to the Association title insurance
commitments, together with copies of all documents of record related to exceptions
identified in the title commitments (together, "Title Commitments") from Land
Title Guarantee Company (or another reputable title insurance company authorized
to conduct business in Colorado and that is reasonably acceptable to the
Association) ("Title Company"). The Title Commitments must show title to the
lands identified in Paragraphs 7.2.1, 7.2.2, and 7.2.3, as being vested in the City,
and title to the lands identified in Paragraph 7.1.1 being vested in the Association,
subject only to those exceptions set forth on Schedule B-2 to the Title
Commitments. The City is responsible for the cost of the Title Commitments and
Title Insurance and any required endorsements requested by the Association.
7.5.2. If the Title Commitments disclose title defects unsatisfactory to the City or
the Association as the grantee in such conveyance ("Purchasing Party"), that the
Purchasing Party desires to be corrected or cured, the Purchasing Party may give
the other Party as the grantor in such conveyance ("Selling Party") written notice
of such defects within fourteen (14) days after receipt of the Title Commitments.
The Selling Party will make its best efforts to address the alleged defects, but shall
not be obligated to expend an amount greater than Seven Thousand Dollars
($7,000.00) in the aggregate (including any out-of-pocket expenses for title
endorsements, releases, and reasonable attorneys' fees, etc.). The Selling Party
shall have fourteen (14) days after its receipt of notice of the defect, to give the
Page 12 of 22
EXHIBIT A
Purchasing Party notice of whether or not the Selling Party intends to correct or
cure such defect. Unless the Selling Party, in its sole and absolute discretion
(subject to its good faith effort capped as set forth above), elects to cure such defect,
the Selling Party shall have no obligation to do so. If the Selling Party elects to
cure any such defect, then Selling Party must use its best efforts to cure such defects
prior to the Fee Closing or the Option Closing, as applicable, at its expense (subject
to the cap set forth above), without in any other manner adversely affecting the
terms of this Agreement. In the event that a Selling Party elects to cure a defect
and is unable to do so prior to the Fee Closing or the Option Closing, as applicable,
then the Purchasing Party, at its election, may delay the Fee Closing or the Option
Closing, as applicable, for a reasonable period of time in which to give the Selling
Party time to cure such defect, but in no event shall the Fee Closing or the Option
Closing, as applicable, be delayed for more than twenty-eight (28) days.
7.5.3. If the Selling Party elects not to cure any such defect, the Title Company
refuses to omit, or provide a title insurance endorsement over any title defect or
objection prior to the Fee Closing or the Option Closing, as applicable, or if the
Selling Party, despite its best efforts capped as set forth above, is unable to cure
such defects that the Purchasing Party has provided written objection to (excluding
any permitted exceptions) then the Purchasing Party, at its election, has the right
to:
(1) accept such title as the Selling Party is able to convey; or
(2) rescind Paragraph 7 of this Agreement in its entirety.
7.5.4. Notwithstanding the foregoing:
(1) any title condition consisting of monetary liens, deeds of trust, or
other financial encumbrances against the subject property caused
by, through or under the Selling Party, must be removed by the
Selling Party at or prior to the Fee Closing or the Option Closing, as
applicable, and the Selling Party's failure to cause the removal of
the same will constitute a default by the Selling Party under this
Agreement; and
(2) in the event the Association fails to cause the removal of a financial
encumbrance against the subject property prior to the Fee Closing
or the Option Closing, as applicable, as required above, the City has
the right to pay amounts required to do so at the Fee Closing or the
Option Closing, as applicable, and receive a credit for such payment
against any other amounts due under this Agreement or any other
agreements between the Parties referenced in this Agreement.
7.6. Maintenance of the Property/Title. The City and the Association, respectively,
must not cause or permit new liens, easements, or other encumbrances on the title to the
Page 13 of 22
EXHIBIT A
lands that are the subject of this Paragraph 7 ("Subject Lands"), except as expressly agreed
by the other Party in writing.
7.7. Representations of the Grantors. The City and the Association, respectively, as
the Selling Party with respect to the Subject Lands they own, represent and warrant as of
the date of this Agreement, to the best of the actual knowledge of their respective officers
without duty of investigation or inquiry, as follows:
7.7.1. Except for the understanding that the Fort Collins City Council can
authorize the use eminent domain to acquire from the Association property rights
as described in this Agreement, and except for any matters in association with
Fort Collins City Council Resolution No. 013, 2020, they have not received any
written notice of any litigation proceeding, including but not limited to any
eminent domain proceeding, pending or notice of threatened litigation against or
relating to any part of the Subject Lands.
7.7.2. They have not received written notice of any violations of any laws,
orders, regulations, or requirements of any governmental authority affecting the
Subject Lands.
7.7.3. The Parties have the right and power to execute and deliver this
Agreement and to consummate the conveyances contemplated in this Agreement.
7.7.4. Except as may be contained on a survey to be completed, they have not
received written notice of violation of any of the covenants, conditions,
restrictions, rights -of -way, or easements affecting the Subject Lands.
Upon the Fee Closing or the Option Closing, as applicable, and to the extent that the
information comprising the representations and warranties contained in this
Paragraph 7.7 are still true in all respects, the Parties shall repeat these representations
and warranties in the final closing documents contemplated in Paragraph 7.11.
7.8. Inspection.
7.8.1. At any time after the Fee Option Exercise or the Reservoir Dam Acceptance,
as applicable, and prior to the Fee Closing or the Option Closing, as applicable, the
City and the Association have the right to make reasonable inspections of the
physical condition of the Subject Lands. These inspections may include, but are
not limited to, environmental assessments and inspections regarding compliance
with any building or fire code, environmental protection, pollution or land use or
zoning laws, rules or regulations, including, any laws relating to the disposal or
existence of any hazardous substance or other regulated substance in or on the
Subject Lands. If the Purchasing Party does not provide to the Selling Party written
notice of any unsatisfactory condition, as determined at the Purchasing Party's sole
discretion, signed by an authorized representative of the Purchasing Party, within
twenty-eight (28) days prior to the Fee Closing or the Option Closing, as applicable,
Page 14 of 22
EXHIBIT A
the Purchasing Parry waives any objection to the physical condition of the Subject
Lands as of that date. If the Purchasing Party does timely provide the Selling Parry
written notice of any unsatisfactory condition and the Selling Party elects to cure
the unsatisfactory condition, the Purchasing Party may postpone the Fee Closing or
the Option Closing, as applicable, for a reasonable period of time, but not to exceed
twenty-eight (28) days, while the Selling Party cures the condition. If the Selling
Party elects not to cure the condition, the Purchasing Party may terminate this
Agreement, or accept the Subject Lands, subject to such unsatisfactory condition.
The Purchasing Party is responsible and will pay for any damage that occurs to the
Subject Lands and the improvements located thereon as a result of these
inspections.
7.8.2. Each Party hereby authorizes the other Party, and its engineer and/or other
experts or agents, to enter upon the Subject Lands at any reasonable time for the
purpose of making such inspections. The Purchasing Parry shall notify Selling
Party prior to any entry onto the Subject Lands pursuant to this Agreement. The
Purchasing Party is solely responsible for any expenses, costs (including court costs
and reasonable attorneys' fees), liens and claims incurred by the Purchasing Party
and arising out of any such tests, inspections and activities, and the Purchasing
Party releases the Selling Party from any claims or demands for injury or property
damage incurred by the Purchasing Parry as a result of the Purchasing Parry's due
diligence activities on the Subject Lands. The Purchasing Party will, and will cause
any consultant to, take all reasonable precautions to avoid any damage to the
Subject Lands from the inspection activities of its employees, contractors, and
equipment. Any damage to the Subject Lands or any portion thereof resulting from
the activities of Purchasing Party or its agents or contractors, whether or not caused
by negligence, will be promptly restored by the Purchasing Parry at its expense. To
the extent permitted by law, each Party shall indemnify, protect and hold each other
harmless from and against any and all liens, claims, causes of action, demands,
obligations, losses, damages, liabilities, judgements and costs (including court costs
and reasonable attorney's fees) in connection with its tests, inspections and
activities on the Subject Lands.
7.9. Possession. The Parties will deliver possession of the Subject Lands at the Fee
Closing or the Option Closing, as applicable, pursuant to the conveyances described above,
and for the Option Closing subject to the West Access Easement, North Fork Access
Easement, and for both the Fee Closing and the Option Closing to those permitted
exceptions set forth on Schedule B-2 to the Title Commitments.
7.10. Proration. Real property taxes and assessments and similar expenses, in
accordance with local practice, will be prorated as of the date of the Fee Closing or the
Option Closing, as applicable, based on the most recent valuation and mill levy available
to the Title Company, which proration shall be a final settlement of such real property taxes
and assessments and similar expenses.
Page 15 of 22
EXHIBIT A
7.11. Final Closing Documents. The City agrees to prepare, in coordination with the
Title Company, final draft closing documents for the Association's review. The City and
the Association shall work in good faith to finalize the closing documents pursuant to this
Agreement and its intent.
7.12. Recording. The City shall record fully executed copies of the conveyances
identified in Paragraphs 7.1 and 7.2 with the Larimer County Clerk and Recorder at the
City's cost.
8. MODIFICATIONS TO THE 2017 LEASE. The Parties agree to the following
modifications to the 2017 Lease terms (the "Lease Amendments"). The Lease Amendments are
incorporated into the amended and restated version of the 2017 Lease attached as Exhibit E
(Amended and Restated 2017 Lease). The Amended and Restated 2017 Lease shall be executed
by both Parties no later than sixty-three (63) days after the mutual execution of this Agreement.
8.1. Term. The Parties desire to extend the initial Term of the 2017 Lease through
Phase 2 (Construction) subject to reasonable limitations on the Association's use of the
Property (as defined in the 2017 Lease) to allow the City to complete construction and for
health and safety reasons. The Association's right to extend the term of the Lease pursuant
to Paragraph 5 of the Lease remains unchanged.
8.1.1. Paragraph 6.a of the 2017 Lease is deleted and replaced in its entirety with
the following:
"The City has issued a notice to the Association that the Colorado Division
of Water Resources has accepted construction of the new Reservoir Dam
pursuant to its Rules and Regulations for Dam Safety and Dam
Construction, 2 CCR 402-1 (or successor regulations) and that Phase 2
(Construction) is complete; or."
8.1.2. Paragraph 4.a is therefore added to the 2017 Lease:
"During the time period after the City has begun construction on the
Halligan Reservoir enlargement and before the City has issued a notice to
the Association that the Colorado Division of Water Resources has accepted
construction of the new Reservoir Dam pursuant to its Rules and
Regulations for Dam Safety and Dam Construction, 2 CCR 402-1 (or
successor regulations) and that Phase 2 (Construction) is complete, the City
shall be entitled to impose reasonable limitations on the Association's use
of the Property to allow the City to complete construction and for health and
safety reasons."
8.2. Rent. As part of this Agreement, the Parties desire to no longer require the
Association to make the "Annual Rent" payments under Paragraph 8 of the 2017 Lease.
Paragraph 8 of the 2017 Lease is therefore replaced in its entirety with the following:
Page 16 of 22
EXHIBIT A
"Rent. Full compensation to the City for the lease for the Property and Reservoir
having been made pursuant to the Agreement Between the City of Fort Collins and
the Landowners' Association for Phantom Canyon Ranches Regarding the
Halligan Water Supply Project; no additional compensation to the City is required
for the Initial Term or any Extension Term of this Lease Agreement."
9. POTENTIAL CLAIMS UNDER THE 111987 AGREEMENT." The City entered into
an Agreement, dated October 14, 1987, s with the Phantom Canyon Ranch Co., a Colorado limited
partnership, and Halligan Resources Co., a Colorado limited partnership (together, the
"Partnerships"). The Association may be a successor -in -interest to one or both of the Partnerships
in certain respects. The Association thus may have certain potential claims against the City under
the 1987 Agreement, though City does not admit, agree, concede, stipulate to, or waive anything
with respect to such potential claims. As part of this Agreement, the Association hereby releases
and forever discharges the City from any and all claims under the 1987 Agreement.
10. RECREATION ON THE RESERVOIR. The City agrees that the Association shall have
the same rights to utilize the surface of the enlarged Reservoir as the public. Absent a subsequent
agreement between the City and the Association, the City further agrees to not authorize public
access to the surface of the Reservoir to the east of the line between Sections 33 and 34 and only
authorize access to the remainder of the Reservoir to human -propelled boaters that have and utilize
valid fishing licenses.
11. GENERAL PROVISIONS.
11.1. Monetary Compensation. In addition to the other obligations and compensation
of the Parties under this Agreement, the Parties agree to the following monetary
compensation.
11.1.1. Within twenty-eight (28) days of the execution of this Agreement, the City
shall pay the Association $ .00.
11.1.2. At the Option Closing, the Association shall pay the City based on the
following:
The sum of the prices for each of the Options the Association exercises (as
stated in Paragraphs 7.2.1.1, 7.2.2.1, and 7.2.3.1) less $ .00, to account
for the values the City and the Association are otherwise acquiring under
this Agreement.
If the above results in a negative number, the City shall owe the Association
that amount.
11.1.3. As identified in Paragraphs 5 and 6, the City may require temporary
construction easements across the Association Land for Phase 2, access to the
s See Memorandum of Agreement, dated November 12, 1987, recorded with the Larimer County Clerk and Recorder
on November 13, 1987 at Reception No. 87064570.
Page 17 of 22
EXHIBIT A
Reservoir and the North Fork through permanent access easements across
Association Land for Phase 3, and rights to inundate certain Association Lands
during Phase 3, which may require monetary payments from the City to the
Association. The Parties agree to explore in good faith whether the amounts the
Association owes to the City under Paragraph 11.1.2 and the amounts the City may
owe the Association for access under Phases 2 and 3 may be aggregated to result in
a single net payment from one entity to the other.
11.2. Recording. The City shall be responsible for recording this Agreement with the
Larimer County Clerk and Recorder. The City shall pay all recording costs.
11.3. Fiscal Contingency. Notwithstanding any other provisions of this Agreement to
the contrary, the obligation of the City in fiscal years after the fiscal year of this Agreement
shall be subject to appropriation of funds sufficient and intended therefor, with the City
having the sole discretion to determine whether the subject funds are sufficient and
intended for use under this Agreement. The failure of a City to appropriate such funds
shall be grounds for termination of this Agreement upon written notice pursuant to
Paragraph 11.8.
11.4. Default and Remedies. If either Party fails to comply with the provisions of this
Agreement, the complying Party shall provide prompt written notification to the
noncomplying Party specifying the noncompliance and the section(s) of this Agreement
with which the noncomplying Party is in default. Thereafter, the noncomplying Party shall
have thirty-five (35) days following receipt of such notice to cure such noncompliance,
provided however that if the cure to such noncompliance is of a nature that it reasonably
requires more than 35 days, then the other Party may grant an extension of time to the
noncomplying Party to cure such default, but in no event to exceed twenty-eight (28) days.
The complying Party may not unreasonably withhold its grant of an extension of time to
cure under this Paragraph 11.4. In the event that the noncomplying Party does not achieve
compliance within the cure period, as may be extended, then the complying Party may seek
all such remedies available under Colorado law, provided that neither Party shall be entitled
to consequential or punitive damages. In the event of a default, the noncomplying Party
agrees to reimburse the other Party for reasonable attorney's fees in enforcing this
Agreement.
11.5. No Third -Party Beneficiaries. This Agreement is entered into between the Parties
for the purposes set forth herein. It is the intent of the Parties that they are the only
beneficiaries of this Agreement and the Parties are only benefitted to the extent provided
under the express terms and conditions of this Agreement.
11.6. Governing Law and Enforceability. This Agreement shall be construed in
accordance with the laws of the State of Colorado. The Parties recognize that the
constitutions, statutes, and rules and regulations of the State of Colorado and of the United
States, as well as the Parties' respective articles of incorporation, bylaws, city charters and
codes, and rules and regulations, impose certain legal constraints on each Parry and that
the Parties intend to carry out the terms and conditions of this Agreement subject to those
Page 18 of 22
EXHIBIT A
constraints. Whenever possible, each provision of this Agreement shall be interpreted in
such a manner so as to be effective and valid under applicable law.
11.7. Waiver. A waiver of a default of any of the provisions of this Agreement shall not
constitute a waiver of any subsequent default of the same or another provision of this
Agreement. Nothing in this Agreement shall be construed as any waiver of governmental
immunity of the Parties who are governments or any other governmental provisions of
State law. Specifically, by entering into this Agreement, neither Party waives the monetary
limitations on liability or any other rights, immunities, or protections provided by the
Colorado Government Immunity Act, C.R.S. § 24-10-101, et seq., or any successor or
similar statutes of the State of Colorado.
11.8. Notices. All notices or other communications hereunder shall be sufficiently given
and shall be deemed given (i) when personally delivered; (ii) on the date and at the time of
delivery or refusal of acceptance of delivery if delivered or attempted to be delivered by an
overnight courier service to the party to whom notice is given at the address specified
below; (iii) on the date and at the time shown on the electronic mail if sent by electronic
transmission at the e-mail addresses set forth below and receipt of such electronic mail is
acknowledged by the intended recipient thereof, or (iv) after the lapse of seven (7) days
following mailing by certified mail -return receipt requested, postage prepaid, addressed as
follows:
To Fort Collins: City Manager
City Hall West
300 LaPorte Avenue; P.O. Box 580
Fort Collins, Colorado 80522-0580
Telephone:
E-mail:
With copy to: Fort Collins City Attorney
300 LaPorte Avenue; P.O. Box 580
Fort Collins, Colorado 80522-0580
Telephone:
E-mail: epotyondy@fcgov.com
and: Fort Collins Utilities
Attn: Halligan Water Supply Project Manager
4316 LaPorte Ave.
Fort Collins, Colorado 80521
E-mail: edornfest@fcgov.com
To the Association: Landowners Assoc. for Phantom Canyon Ranches
Attn: Brian T. Gray, President (or current LAPCR
President)
1738 Bonny Drive
Loveland, CO 80538
Page 19 of 22
EXHIBIT A
(704) 614-7770
btgray@att.net
With copy to: Registered Agent on File with
Colorado Secretary of State
11.9. Construction. This Agreement shall be construed according to its fair meaning as
it was prepared by the Parties. Headings in this Agreement are for convenience and
reference only and shall in no way define, limit, or prescribe the scope or intent of any
provision of this Agreement.
11.10. Entire Agreement. This Agreement constitutes the entire agreement of the Parties
regarding the matters addressed herein. This Agreement binds and benefits the Parties and
their respective successors. Covenants or representations not contained in this Agreement
regarding the matters addressed herein shall not bind the Parties.
11.11. Representations. Each Party represents to the other parties that it has the power
and authority, pursuant to their respective governing policies and rules, to enter into this
Agreement and the individual signing below on behalf of that Party has the authority to
execute this Agreement on its behalf and legally bind that Party.
11.12. Assignment. No Party may assign any rights or delegate any duties under this
Agreement without the written consent of the other Party.
11.13. Severability. If any provision of this Agreement shall prove to be illegal, invalid,
unenforceable, or impossible of performance, the remainder of this Agreement shall remain
in full force and effect.
[Remainder of Page Intentionally Blank]
Page 20 of 22
EXHIBIT A
CITY OF FORT COLLINS, COLORADO, a home -rule city
By: Date:
Kelly DiMartino, Interim City Manager
ATTEST:
By:
City Clerk
Name:
Title:
APPROVED AS TO LEGAL FORM:
Eric R. Potyondy, Assistant City Attorney
Page 21 of 22
EXHIBIT A
LANDOWNERS' ASSOCIATION FOR PHANTOM CANYON RANCHES, a Colorado
non-profit corporation
Brian T. Gray, President
Page 22 of 22
Date:
EXHIBIT A
Exhibit A-1
Association Land and City Land Map
ALandowners' Association for Phantom Canyon Ranches Land
77 City of Fort Collins Land
* Not to scale
Exhibit A-2
Various Conveyances Maps: Map 1
All conveyances adjacent to Halligan Reservoir: Shoreline Access Easement; Fee title (121+1- acres);
Recreational River Access Easement; Reserved Road and River Easements; Small Association Parcels
Landowners' Association for Phantom Canyon Ranches Land
OCity of Fort Collins Property
Shoreline Access Easement Area
■ Fee title (121+/- acres)
EXHIBIT A
■ Retained West Access Easement (road location will likely change following
construction)
Reserved River Access Easement
Not to scale for illustrative
Recreational River Access Easement purposes only.
Final configurations contingent
upon survey and completed
Section lines construction.
EXHIBIT A
Exhibit A-2
Various Conveyances Maps: Map 2
Phase 1 River Access Easement to City*
EXHIBIT A
Exhibit B to Agreement Regarding the Halligan Water Supply Protect
TEMPORARY ACCESS EASEMENT
WITH TERMS AND CONDITIONS
(Phase 1 (Permitting and Design) of the Halligan Water Supply Project)
(Access to North Fork of the Cache la Poudre River)
THIS TEMPORARY ACCESS EASEMENT DEED WITH TERMS AND
CONDITIONS ("Easement") is made and entered into this day of , 20_ (the
"Effective Date"), by and between The Landowners' Association for Phantom Canyon
Ranches, a Colorado nonprofit corporation ("LAPCR"), and THE CITY OF FORT
COLLINS, COLORADO, a municipal corporation ("City").
RECITALS
A. The City is pursuing the Halligan Water Supply Project ("Halligan Project"). The Halligan
Project includes: the enlargement of Halligan Reservoir, also known as North Poudre Reservoir
No. 16 ("Reservoir"), which primarily entails replacing or enlarging the Reservoir's dam
("Reservoir Dam");.' and the replacement of the diversion structure for the North Poudre Canal
and related infrastructure ("Diversion Structure") 2 on the North Fork of the Cache la Poudre River
("North Fork"). The Diversion Structure and portions of the North Fork are located on land owned
by LAPCR.
B. The City is currently working on the various permitting processes for the Halligan Project,
and on design for the infrastructure and overall completion of the project. This work and aspect of
the Halligan Project is referred to as "Phase 1 (Permitting and Design)."
C. As part of Phase 1 (Permitting and Design) of the Halligan Project, City personnel and
certain other people associated with the Halligan Project (which people are identified below) need
to cross the "Property" (which is defined in Paragraph 1 below) to access the North Fork for certain
limited purposes described herein.
D. This Easement is intended to document and provide for the City's orderly use of the
Property during Phase 1 (Permitting and Design) for access to the North Fork and to better protect
LAPCR from the City's use of the Property. As set forth below, LAPCR is willing to grant the
City access across the Property for Phase 1 (Permitting and Design), pursuant to the terms and
conditions of this Easement. Nothing in this Easement is intended to address the City's access or
use of the Property for phases of the Halligan Project other than for Phase 1 (Permitting and
Design).
E. The Property is encumbered by that certain deed of conservation easement held by The
Nature Conservancy ("TNC"), recorded on December 31, 1987, at Reception No. 87072156 (the
' The Reservoir is an on -channel reservoir located on the North Fork, in portions of Sections 32, 33, and 34,
Township 11 North, Range 71 West of the 6th P.M. The Reservoir Dam is located in the NE1/4 of the SW1/4 of
Section 34, Township 11 North, Range 71 West of the 6t' P.M.
2 The Diversion Structure is located in the North Fork in the SE1/4 of Section 12, Township 10 North, Range 71
West of the 6th P.M.
Temporary Access Easement — City Grantee Page 1 of 15
Form version 6/27/16
EXHIBIT A
Exhibit B to Agreement Regarding the Halligan Water Supply Protect
"Conservation Easement"). TNC has reviewed and approved the conditions and restrictions
contained in this Easement and has executed its consent to LAPCR's grant of the TAE (as defined
in Paragraph 2) over the Property, which such consent is attached hereto.
F. In exchange for the promises and considerations set forth in this Easement, the adequacy
of which is hereby acknowledged, the City and LAPCR agree as follows.
AGREEMENT AND EASEMENT
1. LAPCR's Property. LAPCR is the owner of a parcel of real property located in Larimer
County, Colorado. The parcel is legally described on Exhibit A of Temporary Access Easement
(Legal Description and Depiction of the LAPCR Property), which consists of one (1) page that
is attached hereto and made a part of this Easement (the "Property").
2. Grant of Easement — Consideration. For and in consideration of the covenants and
agreements herein set forth, and pursuant to the Agreement Between the City of Fort Collins and
the Landowners' Association for Phantom Canyon Ranches Regarding the Halligan Water Supply
Project, dated , 2022, and other good and valuable consideration, the receipt
and adequacy of which LAPCR acknowledges, LAPCR grants, sells and conveys to the City, its
successors and assigns, a temporary, non-exclusive access easement (the "TAE") on, over, and
across the North Fork, including its bed and fifty (50) horizontal feet from the then -existing water
line along each of its banks, where it crosses the Property as described more fully on Exhibit B of
Temporary Access Easement (Legal Description and Depiction of the LAPCR Property),
consisting of two (2) pages that are attached hereto and made a part of this Easement (the "TAE
Area"), subject to the conditions and restrictions set forth below. It is the express intent of the
Parties that the TAE Area shall be as defined herein, with the recognition that: (1) the TAE Area's
specific width will fluctuate as the waters of the North Fork rise and fall, with the Parties' intent
being that the TAE Area's specific width at any given time be the sum of fifty (50) horizontal feet
on one bank plus the actual width of the North Fork between its water lines plus (50) horizontal feet
on the other bank; and (2) the TAE Area's specific location on the Property will move with the
North Fork as it moves due to erosion, deposition, and other forces, with the Parties' intent being
that the TAE Area's specific location move with the actual location of the North Fork, provided,
however, that the TAE Area not extend farther up or downstream.
3. Purpose and Uses of Easement. The City may use the TAE Area for the purposes of -
minimally -invasive habitat evaluation studies, such as fish and macroinvertebrate surveys; non-
invasive topographic and geomorphic surveys; water quality and other environmental sampling,
including the installation of ground water monitoring wells with data loggers installed by hand;
minimally -invasive, small scale soil, water, aquatic species and/or vegetation sampling; and other
site visits related to permits and approvals needed for the Halligan Project. Larger scale, more
invasive studies and surveys (electro-shocking of the river, digging pits to remove large volumes
of soil, and cutting or clearing of vegetation, by way of example only) may be permitted with the
prior written approval of TNC. The City's use of the TAE Area must be directly related to the
Halligan Project as further described in this paragraph. The City's use of the TAE Area must only
be between the hours of 8AM and 6PM, Monday through Friday (but in no event after sunset or
on a federal holiday). The City's use of the TAE Area must only be by foot.
Temporary Access Easement — City Grantee Page 2 of 15
Form version 6/27/16
EXHIBIT A
Exhibit B to Agreement Regarding the Halligan Water Supply Protect
The City is hereby authorized to temporarily access the TAE Area only to gain entrance to
the North Fork for site visits and data collection related to Phase 1 (Permitting and Design). City
personnel may bring the following guests with them during site visits: land surveyors; appraisers;
and personnel from and consultants for governmental agencies involved in the various permitting
and approval processes for the Halligan Project including but not limited to: the U.S. Army Corps
of Engineers, U.S. Fish and Wildlife Service, Colorado Department of Public Health and
Environment, Colorado Parks and Wildlife, Colorado Water Conservation Board, and Larimer
County (collectively the "City Guests"). On most occasions the City Guests will be accompanied
by City personnel, but on rare occasions, the City may request permission from LAPCR that any
City Guest working on its behalf access the TAE Area without City personnel for purposes of
Phase 1 (Permitting and Design) of the Halligan Project. If any City Guests violates any of the
terms or obligations contained in this Easement while not being accompanied by City personnel,
then LAPCR may prohibit any future use of the TAE Area by such City Guest without City staff
being present. Nothing in this Easement shall be construed to create a right to access the TAE Area
by any person or entity other than the City.
An additional restriction applies to the following portion of the TAE Area: the portion of the
TAE Area along the North Fork lying between the point where it flows onto Section 12 from the west
and the point where it first flows out of Section 12 to the south ("Restricted TAE Area"). Use of the
Restricted TAE Area by the City or City Guests is restricted to five (5) days for each year of the Term
of this Easement unless specific written permission is granted otherwise by LAPCR. By way of
illustration only, if Colorado Parks and Wildlife access the Restricted TAE Area on January 1, 2, and
3 2023, and then the City accesses the Restricted TAE Area on January 4 and 5 2023, the City and
City Guests are prohibited from using the Restricted TAE Area for the remainder of the 2023 calendar
year, unless given specific written authorization from LAPCR.
4. Term. The TAE will terminate when construction on the Reservoir Dam begins, but in no
event later than December 31, 2027 (the "Term"). If construction is delayed beyond December
31, 2027, this Easement may be renewed on a two-year basis, for additional compensation, upon
mutual agreement of both parties in writing.
5. City's Obligations .
(a) The City will not install any improvements in the TAE Area, except for the ground
water monitoring wells identified in Paragraph 3 above. Such wells shall be
removed upon or before termination of this Easement.
(b) The City, its contractors, agents, guests, and invitees will comply with any and all
applicable laws.
(c) The City's access to the TAE Area must be scheduled and conducted so as to
minimize, to the extent practicable, the impacts to the Property and LAPCR's use
thereof. City personnel will notify LAPCR at least 24 hours in advance of any
proposed data collection or site visit via email and/or telephone. LAPCR will
Temporary Access Easement — City Grantee Page 3 of 15
Form version 6/27/16
EXHIBIT A
Exhibit B to Agreement Regarding the Halligan Water Supply Protect
provide City personnel with an up-to-date, email and telephone number for such
purposes.
(d) The City is solely responsible for acquiring access to and across any other lands in
order to reach and use the TAE Area under this Easement.
(e) The City or City Guests shall not undertake any activity that would prevent access
to LAPCR across the TAE Area or unreasonably interfere with LAPCR's quiet
enjoyment of the Property.
(f) All City personnel or City Guests will carry identification declaring the
agency/parry represented.
(g) The City shall comply with all terms contained in the Conservation Easement.
The City, at its sole cost and expense, must repair any and all damage to the TAE Area resulting
from the City's activities under this Easement, including activities of the City's agents, employees,
guests or contractors, and return the Property, including landscape, shrubs, trees, soil conditions,
and other physical site conditions (including but not limited to any changes to the North Fork's
course, shoreline, and vegetative cover) to their original state at the time of this Easement, all to the
reasonable satisfaction of LAPCR and TNC, and at no cost to LAPCR or TNC. If any remaining
damage exists as a result of the City's use at the end of the Term, LAPCR and/or TNC shall give to
the City written notice of the required repairs. If such repairs are not completed by the City, at its
sole cost and expense, within thirty (30) days or, if such work cannot be reasonably completed in
thirty (30) days, as soon as practicable thereafter, LAPCR shall have the right to perform such repair
work. In such event, LAPCR shall be entitled to reimbursement from the City for all costs and
expenses incurred by LAPCR in performing such repair work upon demand, together with interest
on such amounts at the rate of 8% per annum from the date incurred by LAPCR until repaid by
the City. Any work by the City in the TAE Area must be performed in a safe and sanitary manner
and a good and workmanlike manner, and in compliance with all applicable laws.
6. LAPCR's Rights. LAPCR reserves the right to use the TAE Area for any purposes not
inconsistent with the City's rights granted in this Easement. LAPCR will not erect or construct any
structure or improvement, or drill or operate any well, construct any reservoir or impoundment or
other obstruction, install or plant any trees or woody shrubs, or otherwise improve the TAE Area
or change the ground level in the TAE Area during the term of this TAE without the prior written
consent of the City.
7. Maintenance of the TAE Area.
(a) LAPCR is not responsible for any conditions directly caused by City's use and
occupancy of the TAE Area.
(b) LAPCR and the City will not deposit, or permit or allow to be deposited, earth,
rubbish, debris, or any other substance or material, whether combustible or
noncombustible, on the TAE Area and surrounding area.
Temporary Access Easement — City Grantee Page 4 of 15
Form version 6/27/16
EXHIBIT A
Exhibit B to Agreement Regarding the Halligan Water Supply Protect
8. Enforcement. In the event of any violation of the terms of this Easement, each party shall
be entitled to bring an action for damages and/or negative or affirmative injunctive relief, and to
seek any other right or remedy available at law or in equity. The failure to enforce any provision
hereof shall not constitute a waiver of such provision or any right or remedy arising therefrom.
9. Representations of LAPCR. LAPCR states that it is the lawful owner in fee simple of the
Property, subject to the Conservation Easement, and that it has good and lawful right and authority
to grant this Easement.
10. Insurance. The City shall procure, pay for, and keep in full force and effect during the
Term, a comprehensive policy of general liability insurance covering the City's use of the Property
and insuring the City in an amount not less than One Million Dollars ($1,000,000.00) covering
bodily injury, including death to persons, personal injury, and property damage liability arising
out of a single occurrence directly from work under this Agreement. Such coverage must include,
without limitation, the insured's liability for property damage, bodily injuries, and death of persons
in connection with the operation, maintenance, or use of the Property (including acts or omissions
of the City or of its officers, employees, agents or guests), and protection against liability for non -
owned and hired automobiles and other vehicles or equipment.
For each and every one of its contractors, using the TAE Area, the City will provide to LAPCR
prior to use of the Easement, or shall require its contractors to provide certificates of insurance for
general liability policies, commercial automobile policies and workers compensation policies.
In the event the City fails or neglects to maintain, or require its contractors to procure and maintain,
as applicable, the insurance required by this paragraph, then LAPCR shall have the right to refuse
entry to such contractor.
11. Additional Terms on the Use of the Property.
(a) Use of the Property by the City pursuant to this Easement is subject to the
Declaration of Easements, the Covenants, the Rules and Regulations of LAPCR
and the prohibitions, restrictions, and other terms contained in the Conservation
Easement.
(b) Except as otherwise stated in this Easement, the City shall be deemed to have
accepted the Property in its present condition, as is, where is, with all faults, patent
and latent, without any representations or warranties whatsoever by LAPCR, its
agents or employees. The City assumes all risks associated with use of the Property.
The City acknowledges that neither LAPCR nor any of LAPCR's agents have made
any representations or warranties whatsoever regarding the Property. The City
assumes all risk that any adverse matter of whatever kind or nature including, but
not limited to the physical condition of the Property that may arise in the future.
LAPCR shall have no obligation to the City to maintain the Property in its present
condition or to improve the Property for the City's use.
Temporary Access Easement — City Grantee Page 5 of 15
Form version 6/27/16
EXHIBIT A
Exhibit B to Agreement Regarding the Halligan Water Supply Protect
(c) To the extent permitted by law and without waiving its right to governmental
immunity, the City shall be deemed to have released LAPCR and TNC, their
officers, directors, members, agents, guests and employees and their respective
heirs, personal representatives, successors, and assigns ("Released/Indemnified
Parties") from and against any and all claims, demands, actions, suits, and
proceedings of whatever kind or nature that the City may now have or may have at
any time in the future arising out of or as a result of the present or any future
condition of the Property.
(d) To the extent permitted by law and without waiving its right to governmental
immunity, the City shall defend, indemnify and hold harmless the
Released/Indemnified Parties from and against any and all loss, cost, and expense
including attorneys' fees arising out of, as a result of, or in connection with any
claim made against the Released/Indemnified Parties as a result of the use or misuse
of the of the Property by the City, its agents, employees, contractors, guests or any
other person or entity using the Property with the express or implied authorization,
permission, or consent of the City. To the extent permitted by law and without
waiving its right to governmental immunity, the City shall also defend, indemnify
and hold harmless the Released/Indemnified Parties and the Property from and
against any and all loss, cost, and expense including attorneys' fees arising out of,
as a result of, or in connection with any claim made against the
Released/Indemnified Parties as a result of the any work performed on the Property
by the City, its agents, employees, contractors, including but not limited to
mechanic's lien claims.
12. No Liens. The City shall ensure that no liens attach to the Property in connection with its
use of the TAE for Phase 1 (Permitting and Design). In the event that a lien is filed against the
Property or TAE Area arising out of Phase I (Permitting and Design) the City shall cause it to be
removed and released as soon as reasonably practicable.
13. Default and Litigation Expenses. If a party to this Easement is in default in performance of
its respective obligations hereunder, the other party has the right to an action for specific
performance or damages or both. Prior to proceeding with any such action, the party not in default
must first send written notice to the defaulting party specifying the default and affording such party
a reasonable period to cure the default, but in no event shall the period to cure the default extend
beyond 90 days. In the event a party defaults in any of its covenants or obligations and the party
not in default commences and substantially prevails in any legal or equitable action against the
defaulting party, the defaulting party expressly agrees to pay all reasonable expenses of the
litigation, including a reasonable sum for attorneys' fees or similar costs of legal representation.
14. Not a Public Dedication. This Easement and the rights granted herein are for the use of the
City pursuant to the terms hereof. Nothing contained herein shall be deemed to be a gift or
dedication of the Property or any portion thereof, to, or for the benefit of the general public or for
any public purpose whatsoever.
Temporary Access Easement — City Grantee Page 6 of 15
Form version 6/27/16
EXHIBIT A
Exhibit B to Agreement Regarding the Halligan Water Supply Protect
15. Obligations Subject to Appropriation. All financial obligations of the City in fiscal years
subsequent to the date of this Easement are subject to appropriation of funds sufficient and
intended for such purpose by the Fort Collins City Council in its discretion.
16. Additional Terms and Conditions. Whenever used herein, the singular number includes the
plural, the plural the singular; and the use of any gender is applicable to all genders. All of the
covenants herein contained are binding upon and inure to the benefit of the parties hereto and their
personal representatives, successors and assigns. If any term of this Easement is determined by
any court to be unenforceable, the other terms of this Easement 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 Easement as may be necessary to restore the
parties as closely as possible to the initially agreed upon relative rights and obligations.
IN WITNESS WHEREOF, the parties have set their hands and seals the day and year first above
written.
[Remainder of Page Intentionally Blank]
Temporary Access Easement — City Grantee Page 7 of 15
Form version 6/27/16
EXHIBIT A
Exhibit B to Agreement Regarding the Halligan Water Supply Protect
The Landowners' Association for Phantom
Canyon Ranches,
a Colorado nonprofit corporation
Date:
Brian T. Gray, President
STATE OF COLORADO )
ss
COUNTY OF )
The foregoing instrument was acknowledged before me this day of ,
2022, by Brian T. Gray as President for The Landowners' Association for Phantom Canyon
Ranches, a Colorado nonprofit corporation.
WITNESS my hand and official seal.
Notary Public
My Commission expires:
Temporary Access Easement — City Grantee Page 8 of 15
Form version 6/27/16
EXHIBIT A
Exhibit B to Agreement Regarding the Halligan Water Supply Project
CONSENT OF THE NATURE CONSERVANCY
The Undersigned, being the holder of a perpetual conservation easement property right (the
"Conservation Easement") over the property described on Exhibit A, hereby consents and agrees
to the grant of the temporary non-exclusive access easement (the "Easement") to which this
Consent is attached to The City of Fort Collins, Colorado (the "City") from the Landowners'
Association for Phantom Canyon Ranches ("LAPCR"). Provided, however, that such Easement
shall remain subordinate to the Conservation Easement and is subject to the terms and conditions
contained in the Conservation Easement. The undersigned further agrees that it will not declare
LAPCR in default under the Conservation Easement or seek any remedy from or against the
LAPCR due to the recording of the Easement nor due to any of the uses or practices of the Property
by the City during the term of the Easement, for which the City shall remain responsible as set
forth in the Easement.
Dated this day of , 2022.
STATE OF
COUNTY OF
By:
Name:
Its:
ss
THE NATURE CONSERVANCY,
a District of Columbia non-profit corporation
The foregoing instrument was acknowledged before me this
2022, by
as
District of Columbia non-profit corporation.
Witness my hand and official seal.
day of ,
of The Nature Conservancy, a
Notary Public
My commission expires:
Temporary Access Easement — City Grantee Page 9 of 15
Form version 6/27/16
Exhibit B to Agreement Regarding the Halligan Water Supply Protect
EXHIBIT A
Date: By:
ATTEST:
City Clerk
(Print Name)
APPROVED AS TO FORM:
Assistant City Attorney
(Print Name)
STATE OF COLORADO )
ss
COUNTY OF LARIMER )
THE CITY OF FORT COLLINS, COLORADO
a Municipal Corporation
Kelly DiMartino, Interim City Manager
The foregoing instrument was acknowledged before me this day of
, 2022, by Kelly DiMartino as Interim City Manager of the City of Fort Collins.
Witness my hand and official seal.
My Commission expires:
Notary Public
Temporary Access Easement — City Grantee Page 10 of 15
Form version 6/27/16
EXHIBIT A
Exhibit B to Agreement Regarding the Halligan Water Supply Project
EXHIBIT A
OF TEMPORARY ACCESS EASEMENT
(Map of the LAPCR Property)
NW1/4, SW1/4, and SE1/4 Section 12, Township 10 North, Range 71 West of the 6th P.M.,
County of Larimer, State of Colorado.
Temporary Access Easement — City Grantee Page 11 of 15
Form version 6/27/16
Exhibit B to Agreement Regarding the Halligan Water Supply Project
EXHIBIT A
N
Temporary Access Easement — City Grantee Page 12 of 15
Form version 6/27/16
EXHIBIT A
Exhibit B to Agreement Regarding the Halligan Water Supply Proied
Temporary Access Easement — City Grantee Page 13 of 15
Form version 6/27/16
EXHIBIT A
1SM!II1.110.11
OF TEMPORARY ACCESS EASEMENT
(Legal Description and Depiction of the Temporary Access Easement Area)
( Page 1 of 2)
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Temporary Access Easement — City Grantee Page 14 of 15
Form version 6/27/16
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Temporary Access Easement — City Grantee Page 15 of 15
Form version 6/27/16
EXHIBIT A
Exhibit C to Agreement Regarding the Halligan Water Supply Proiect
SPECIAL WARRANTY DEED
SUBJECT TO RESTRICTIVE COVENANT
(Conveyance of Small Association Parcels from LAPCR to the City,
with One Such Parcel (North Parcel) Subject to a Restrictive Covenant)
THIS SPECIAL WARRANTY DEED ("Deed"), made this day of , 20_,
by and between LANDOWNERS' ASSOCIATION FOR PHANTOM CANYON RANCHES,
a Colorado nonprofit corporation ("Grantor"), whose mailing address for the purpose of this Deed
is 1738 Bonny Dr., Loveland, CO 80538, and the CITY OF FORT COLLINS, COLORADO, a
municipal corporation, whose mailing address for purposes of this General Warranty Deed is P.O.
Box 580, Fort Collins, Colorado 80522 ("Grantee").
WITNESSETH:
That the Grantor, for and in consideration of the sum of Dollars
($ ), and pursuant to the Agreement Between the City of Fort Collins and the
Landowners' Association for Phantom Canyon Ranches Regarding the Halligan Water Supply
Project, dated , 2022, and other good and valuable consideration, to the Grantor in
hand paid by the Grantee, hereby grants, sells, and conveys to Grantee that certain real property,
together with all appurtenances and improvements, if any, situate, lying, and being in the County
of Larimer, State of Colorado more particularly described in Exhibit A of Special Warranty
Deed attached hereto consisting of (xxx) page(s), and incorporated herein by this reference,
which real property shall hereinafter be referred to as "Property", but with respect to the portion
of the Property located north of Halligan Reservoir ("North Parcel") only, more particularly
described in Exhibit B of Special Warranty Deed attached hereto consisting of (xxx)
page(s)reserving unto the Grantor, its successors and assigns: a restrictive covenant on the North
Parcel as described in Exhibit D of Special Warranty Deed (Restrictive Covenant), attached
hereto, consisting of _ pages, and incorporated herein by this reference.
TO HAVE AND TO HOLD the Property with appurtenances and improvements, unto
Grantee, its successors and assigns forever.
AND GRANTOR for itself, its successors and assigns, does covenant and agree that it shall
and will WARRANT AND FOREVER DEFEND the above bargained Property in the quiet and
peaceable possession of the Grantee, its successors and assigns, against all and every person or
persons claiming the whole or any part thereof, by, through, or under Grantor, SUBJECT to this
matters set forth on Exhibit C of Special Warranty Deed (Permitted Exceptions) attached hereto
and incorporated herein by this reference.
IN WITNESS WHEREOF, the Grantor has executed this Special Warranty Deed on the
date set forth above.
Page 1 of 17
EXHIBIT A
Exhibit C to Agreement Regarding the Halligan Water Supply Protect
GRANTOR:
Landowners' Association for Phantom Canyon Ranches, a Colorado nonprofit corporation
Date:
STATE OF COLORADO )
ss
COUNTY OF )
Bv:
Brian T. Gray, President
The foregoing instrument was acknowledged before me this day of ,
by Brian T. Gray as President for the Landowners' Association for Phantom Canyon Ranches.
Witness my hand and official seal.
My Commission expires:
Notary Public
Page 2 of 17
EXHIBIT A
Exhibit C to Agreement Regarding the Halligan Water Supply Proiect
ACCEPTED BY GRANTEE:
THE CITY OF FORT COLLINS, COLORADO
a Municipal Corporation (the Grantee)
Date:
ATTEST:
City Clerk
(Print Name)
APPROVED AS TO FORM
Assistant City Attorney
(Print Name)
Kelly DiMartino, Interim City Manager
Page 3 of 17
EXHIBIT A
Exhibit C to Agreement Regarding the Halligan Water Supply Project
EXHIBIT A
OF SPECIAL WARRANTY DEED
(Legal Description and Depiction of the Property (All Parcels, Including the North Parcel))
*Placeholder until surveyed legal description and depiction are completed pursuant to the
Agreement Between the City of Fort Collins and the Landowners' Association for Phantom
Canyon Ranches Regarding the Halligan Water Supply Project*
Page 4 of 17
EXHIBIT A
Exhibit C to Agreement Regarding the Halligan Water Supply Proiect
r
Page 5 of 17
EXHIBIT A
Exhibit C to Agreement Regarding the Halligan Water Supply Project
EXHIBIT B
OF SPECIAL WARRANTY DEED
(Legal Description of the North Parcel)
*Placeholder until surveyed legal description and depiction are completed pursuant to the
Agreement Between the City of Fort Collins and the Landowners' Association for Phantom
Canyon Ranches Regarding the Halligan Water Supply Project*
Page 6 of 17
EXHIBIT A
Exhibit C to Agreement Regarding the Halligan Water Supply Proiect
EXHIBIT C
OF SPECIAL WARRANTY DEED
(Permitted Exceptions)
Page 7 of 17
EXHIBIT A
Exhibit C to Agreement Regarding the Halligan Water Supply Proiect
EXHIBIT D
OF SPECIAL WARRANTY DEED
(Restrictive Covenant on North Parcel)
DECLARATION OF RESTRICTIVE COVENANT
THIS DECLARATION OF RESTRICTIVE COVENANT ("Covenant") is made this
day of , 202_, by CITY OF FORT COLLINS, COLORADO, a municipal
corporation ("C") whose address is 300 Laporte Avenue, P.O. Box 580 Fort Collins, CO 80522-
0580 in favor of the LANDOWNERS' ASSOCIATION FOR PHANTOM CANYON
RANCHES, INC. a Colorado nonprofit corporation referred to hereinafter as ("LAPCR"),
whose address is 1738 Bonny Drive, Loveland, CO 80538.
RECITALS:
WHEREAS, LAPCR has conveyed to City fee simple title to certain real property
described on Exhibit B of the Special Warranty Deed, Subject to Restrictive Covenant, to which
this Covenant is attached ("North Parcel"), reserving from such conveyance the restrictions set
forth herein.
WHEREAS, this Covenant shall encumber and run with the North Parcel for the benefit of
LAPCR and its successors in interest.
WHEREAS, LAPCR is the owner of those certain parcels of real property located in
Larimer County, Colorado, which are legally described on Exhibit 1 of Restrictive Covenant
(Legal Description of LAPCR Property), consisting of () pages, attached and
incorporated herein by reference ("LAPCR Property").
WHEREAS, the North Parcel possesses natural, scenic, and open space values
(collectively, "Conservation Values") of great importance to LAPCR, the City and the people of
Larimer County.
WHEREAS, the Conservation Values of the North Parcel include views of the mountain
backdrop to Halligan Reservoir and surrounding foothills, wildlife habitat and the aesthetic value
as open space.
WHEREAS, the City and LAPCR desire to place a Covenant upon the North Parcel for the
purpose of protecting its Conservation Values for the benefit of LAPCR's Property.
NOW, THEREFORE, in consideration of the above and the mutual covenants, terms,
conditions, and restrictions contained herein and pursuant to the laws of the State of Colorado, the
City and LAPCR, on behalf of themselves and their successors -in -interest and assigns, hereby
acknowledge and agree to the following Covenant in perpetuity over the North Parcel of the nature
and character and to the extent hereinafter set forth.
Page 8 of 17
EXHIBIT A
Exhibit C to Agreement Regarding the Halligan Water Supply Protect
1. Purpose. The purpose of this Covenant is to ensure that the North Parcel will be retained
predominately for its Conservation Values, and water utility purposes related to Halligan
Reservoir, and to prevent any use of the North Parcel that will significantly impair or interfere with
the Conservation Values, which will facilitate meeting the terms and conditions of approval and
permits needed for the enlargement of Halligan Reservoir, including mitigation -related items, and
to help maintain the quality of water in the Halligan Reservoir, which is beneficial to the City and
its water utility for various reasons and purposes. LAPCR intends that this Covenant will restrict
the use of the North Parcel to activities that are consistent with the Conservation Values. The
North Parcel shall not be used for activities that significantly diminish the Conservation Values.
These covenants, conditions and restrictions are hereby imposed on the North Parcel.
2. Submission of Property to Restrictive Covenants. LAPCR hereby impresses and imposes
upon the North Parcel the covenants, conditions, and restrictions set forth and provided for herein.
This Covenant shall be binding upon the City, its successors, assigns, and grantees. The North
Parcel shall be held, sold and conveyed subject to all of the covenants, conditions, and restrictions
set forth herein, which will run with the land and title, and the grantee of any deed conveying the
North Parcel or any portion thereof will be deemed by the acceptance of such deed to have agreed
to all such covenants, conditions, and restrictions, and to have covenanted to observe, comply with
and be bound by all such covenants, conditions, and restrictions.
3. Use and Management of the Property. Any activities on or use of the North Parcel that are
not materially inconsistent with the purposes of the Covenant are permitted (including recreation
(e.g., hiking, hunting, fishing), wildlife and land management, and access to Halligan Reservoir),
subject to any applicable terms and conditions set forth below in the following subparagraphs:
a. No Structures or Development. No structures shall be permitted on the North
Parcel. No development of the North Parcel for commercial, industrial, or residential
purposes shall be allowed.
b. Motorized Vehicles. Use of motorized vehicles shall be allowed only for: (i) access
to Halligan Reservoir by authorized City personnel or its agents and contractors, including
personnel from the State of Colorado involved in managing the North Parcel, but in no
event, the general public; (ii) wildlife and land management; (iii) weed management; (iv)
emergencies; and (v) as may be required for compliance with this Covenant, the Americans
with Disabilities Act or similar laws.
C. Target Shooting. Target shooting of any kind shall not be permitted on the North
Parcel. In this Covenant, target shooting and hunting are distinct and the prohibition on
target shooting does not limit hunting.
d. Fences. Any existing fences may be repaired or replaced, and new fences may be
built for purposes of reasonable and customary management of livestock and wildlife. All
new fences shall be designed and constructed to be friendly to wildlife, such as, for example
only, those identified by the Colorado Division of Parks and Wildlife wildlife -friendly
fencing design standards.
Page 9 of 17
EXHIBIT A
Exhibit C to Agreement Regarding the Halligan Water Supply Protect
e. Subdivision. Any division or subdivision of title to the North Parcel is prohibited.
Nothing in this subparagraph shall be construed to prohibit joint ownership of the North
Parcel or ownership of the North Parcel by an entity consisting of more than one member.
f. Grazing. Livestock grazing may occur only in accordance with sound stewardship
and management practices, such as, for example only, those in the Natural Resources
Conservation Service (MRCS) Field Office Technical Guide. For purposes of this
Covenant "livestock" shall mean cattle, horses, goats, llamas, alpaca, and bison. No
domesticated sheep shall be allowed to graze. This provision is not intended to preclude
the use of goats for weed management.
g. Trash and Storage of Materials. The dumping or uncontained accumulation of any
kind of trash or refuse on the North Parcel, including but not limited to hazardous
chemicals, is strictly prohibited. No storage of any vehicles, trailers, boats, etc. will be
allowed.
h. Mineral Rights. The City shall not develop, or lease or sell to others for
development, any mineral rights that the City may own on the North Parcel without the
written consent of the LAPCR.
The City may impose additional limits and restrictions on the use of the North Parcel provided that
they are otherwise consistent with applicable law.
4. Reserved Rights. Subject to interpretation under Paragraph 12, the City reserves unto
itself, and to its successors, and assigns, all rights accruing from its ownership of the North Parcel,
including the right to engage in or permit or invite others to engage in all uses of the North Parcel
that are not specifically prohibited or inconsistent with any of the purposes of the Covenant or with
the conditions, restrictions or other terms of this Covenant.
5. Rights of LAPCR. To accomplish the purposes stated herein, the City conveys to LAPCR
the right to proceed at law or in equity to enforce the provisions of this Covenant, to prevent the
occurrence of any of the prohibited activities set forth herein, and to require the restoration of areas
or features of the North Parcel that may be damaged by any activity inconsistent with this
Covenant.
6. Enforcement.
a. If LAPCR finds what it believes is a violation of this Covenant, LAPCR shall notify
the City in writing of the nature of the alleged violation. Upon receipt of this written notice,
the City shall either: (a) restore the North Parcel to its condition prior to the violation; or
(b) provide a written explanation to LAPCR of the reason why the alleged violation should
be permitted.
b. In the event that the parties are in dispute as to the actions required of the City
hereunder, the City and LAPCR will meet as soon as possible to resolve the difference. If
either LAPCR or the City determines that mediation would be advantageous in connection
with such meeting, or if a resolution of this difference cannot be achieved at the meeting,
Page 10 of 17
EXHIBIT A
Exhibit C to Agreement Regarding the Halligan Water Supply Project
both parties agree to attempt to resolve the dispute through the process described in
Paragraph 14.m. Should the parties fail to resolve the dispute, or if, in the LAPCR's
opinion, an ongoing or imminent violation could irreversibly diminish or impair the
Conservation Values of the North Parcel or will not otherwise be resolved in a sufficiently
prompt and effective manner, LAPCR may, at its discretion, take such legal action and
seek such legal or equitable remedies as it determines to be appropriate or necessary,
regardless of whether a dispute resolution process has been initiated or completed. Such
remedies may include, without limitation, an injunction to stop an alleged violation,
temporarily or permanently, or an order requiring the City to restore the North Parcel to its
condition prior to the alleged violation. The City shall discontinue any activity which could
increase or expand the alleged violation during any dispute resolution process or any legal
proceeding pertaining to the alleged violation.
C. LAPCR may enforce the terms of this Covenant at its discretion, but if the City, or
its successors or assignees, breaches any term of this Covenant and LAPCR does not
exercise its rights under this Covenant, LAPCR's forbearance shall not be construed to be
a waiver by the LAPCR of such term, or of any subsequent breach of the same or any other
term of this Covenant, or of any of LAPCR's rights under this Covenant. No delay or
omission by LAPCR in the exercise of any right or remedy upon any breach by the City,
or its successors or assignees, shall impair such right or remedy or be construed as a waiver.
LAPCR shall not be obligated to the City, or to any other person or entity, to enforce the
provisions of this Covenant.
7. Costs of Enforcement. Any costs reasonably incurred by LAPCR in enforcing a breach of
the terms of this Covenant against the City, including, without limitation, costs of suit and
reasonable attorneys' fees, and any costs of restoration necessitated by the City's violation of the
terms of this Covenant, shall be borne by the City. If the City prevails in any action to enforce an
alleged breach of the terms of this Covenant, the City's costs of suit, including, without limitation,
reasonable attorneys' fees, shall be borne by LAPCR.
8. Acts Beyond City's Control. Nothing contained in this Covenant shall be construed to
entitle LAPCR to bring any action against the City for any injury to or change in the North Parcel
resulting from causes beyond the City's control, including, without limitation, fire, flood, drought,
storm, landslides and seismic activity, or from any prudent action taken by the City under
emergency conditions to prevent, abate, or mitigate significant injury to the North Parcel resulting
from such causes.
9. Costs and Liabilities. The City retains all responsibilities and shall bear all costs and
liabilities of any kind related to the ownership, operation, upkeep, repair, and maintenance of the
North Parcel, including the maintenance of adequate comprehensive general liability insurance
coverage. The City shall keep the North Parcel free of any liens arising out of any work performed
for, materials furnished to, or obligations incurred by the City. No provision of this Covenant shall
be construed as impairing the ability of the City to use the North Parcel as collateral for borrowing,
provided that any mortgage or lien arising from such borrowing is expressly subordinated to this
Covenant.
Page 11 of 17
EXHIBIT A
Exhibit C to Agreement Regarding the Halligan Water Supply Protect
10. Liability.
a. General. The City is responsible for its own negligence and that of its officers,
employees and agents. Nothing in this Covenant shall be construed as giving rise to any
right or ability in, nor shall LAPCR have any right or ability to exercise physical or
managerial control over the day-to-day operations of the North Parcel, or otherwise to
become an operator with respect to the North Parcel within the meaning of The
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended.
b. No Waiver of Governmental Immunity. Anything else in this Covenant to the
contrary notwithstanding, no term or condition of this Covenant shall be construed or
interpreted as a waiver, either express or implied, of any of the immunities, rights, benefits
or protection provided to City under the Colorado Governmental Immunity Act as amended
or as may be amended in the future (including, without limitation, any amendments to such
statute, or under any similar statute which is subsequently enacted) ("CGIA"), subject to
any applicable provisions of the Colorado Constitution and applicable laws.
C. Environmental Warranty. The City warrants that it shall remain in compliance with
all applicable Environmental Laws.
"Environmental Law" or "Environmental Laws" means any and all Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes, guidelines, policies
or requirements of any governmental authority regulating or imposing standards of liability
or standards of conduct (including common law) concerning air, water, solid waste,
hazardous materials, worker and community right -to -know, hazard communication, noise,
radioactive material, resource protection, subdivision, inland wetlands and watercourses,
health protection and similar environmental health, safety, building and land use as may
now or at any time hereafter be in effect.
"Hazardous Materials" means any petroleum, petroleum products, fuel oil, waste oils,
explosives, reactive materials, ignitable materials, corrosive materials, hazardous
chemicals, hazardous wastes, hazardous substances, extremely hazardous substances, toxic
substances, toxic chemicals, radioactive materials, infectious materials and any other
element, compound, mixture, solution or substance which may pose a present or potential
hazard to human health or the environment."
11. Recordation/Subsequent Transfers. The City shall record this instrument in timely fashion
in the official records of Larimer County, and may re-record it at any time as may be required.
The City will notify LAPCR in advance of the proposed conveyance of any interest in all or any
portion of the North Parcel, and shall incorporate the terms of the Covenant in any deed, Covenant
or other legal instrument by which it divests itself of any interest in all or a portion of the North
Parcel, except that for any lease the City need not incorporate the terms of the Covenant into such
lease, but must notify all tenants in writing of this Covenant and advise such tenants that their lease
is subject to the terms of this Covenant. The City further agrees to give written notice to LAPCR
of the proposed transfer of any interest at least thirty (30) days prior to the City's creation of a
Page 12 of 17
EXHIBIT A
Exhibit C to Agreement Regarding the Halligan Water Supply Project
legal obligation to carry out any such transfer. The failure of the LAPCR or the City to perform
any act required by this paragraph shall not impair the validity of the Covenant or limit its
enforceability in any way.
12. Interpretation. This Covenant shall be interpreted under the laws of the State of Colorado,
resolving any ambiguities and questions of the validity of specific provisions so as to preserve the
Conservation Values and give maximum effect to its conservation purposes.
13. Notices. Any notice, demand, request, consent, approval, or communication that either
party desires or is required to give to the other under this Covenant shall be in writing and either
served personally or sent by first class mail, postage prepaid, or by overnight commercial courier,
addressed as follows and shall be deemed given when personally served, on the day after being
sent by courier, or on the third business day after being mailed:
If to the City: Fort Collins Utilities
Attn: Halligan Water Supply Project Manager
P.O. Box 580
700 Wood St.
Fort Collins, CO 80522
With Copies to: Real Estate Services Manager
City of Fort Collins
Mailing Address: P.O. Box 580
Fort Collins, CO 80522-0580
Hand Delivery: 117 North Mason St.
Fort Collins, CO 80524
City Attorney's Office
City of Fort Collins
Mailing Address: P.O. Box 580
Fort Collins, CO 80522-0580
Hand Delivery: 300 LaPorte Avenue
Fort Collins, CO 80521
If to LAPCR: Landowners Assoc. for Phantom Canyon Ranches
Attn: Brian T. Gray, President (or current LAPCR
president)
1738 Bonny Drive
Loveland, CO 80538
(704) 614-7770
btgray@att.net
With copy to: Registered Agent on File with
Colorado Secretary of State
Page 13 of 17
EXHIBIT A
Exhibit C to Agreement Regarding the Halligan Water Supply Proiect
or to such other address as any party from time to time shall designate by written notice to the
others.
14. General Provisions.
a. Controlling Law. The interpretation and performance of this Covenant shall be
governed by the laws of the State of Colorado.
b. Liberal construction. Any general rule of construction to the contrary
notwithstanding, this Covenant shall be liberally construed in favor of the grant to affect
the purpose of the Covenant. If any provision in this Covenant is found to be ambiguous,
an interpretation consistent with the purposes of the Covenant that would render the
provision valid shall be favored over any interpretation that would render it invalid.
C. Severability. If any provision of this Covenant or application thereof to any person
or circumstance is found to be invalid, the remainder of the provisions of this Covenant, 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 Covenant sets forth the entire agreement of the parties with
respect to the matters described herein, and supersedes all prior discussions, negotiations,
understandings, or agreements relating to the Covenant, all of which are merged herein.
C. No Forfeiture. Nothing contained herein shall result in a forfeiture or reversion of
the City's fee title to North Parcel.
f. Joint Obligation. In the event that there is more than one owner of the North Parcel
at any time, the obligations imposed by this Covenant upon the City shall be joint and
several upon each of the owners of the North Parcel.
g. Successors; Third Party Beneficiaries. The covenants, terms, conditions, and
restrictions of this Covenant shall be binding upon, and inure to the benefit of, the parties
hereto and their respective heirs, beneficiaries, trustees, successors, and assigns and shall
continue as a servitude running in perpetuity with the North Parcel, with the benefit running
in perpetuity with the LAPCR Property. It is expressly understood and agreed that the
enforcement of the terms and conditions of this Covenant and all rights of action relating
to such enforcement, shall be strictly reserved to the parties and that nothing contained in
this Covenant shall give or allow any claim or right of action whatsoever by any other third
person. It is the express intention of the parties that any person or entity, other than the
parties, receiving services or benefits under this Covenant shall be deemed an incidental
beneficiary only.
h. Termination of Rights and Obligations. A parry's rights and obligations under this
Covenant terminate upon transfer of the party's interest in the Covenant or the North Parcel,
except for any unpaid financial obligations of one party to the other which were owed prior
to the date of such transfer under this Covenant.
Page 14 of 17
EXHIBIT A
Exhibit C to Agreement Regarding the Halligan Water Supply Proiect
i. 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.
j. Amendment. If the circumstances arise under which an amendment to or
modification of this Covenant would be appropriate, the City and LAPCR are free to jointly
amend this Covenant. Any amendment must be consistent with the conservation purposes
of this Covenant. Any amendment must be in writing, signed by the duly authorized
officials of each affected party, and recorded in the records of the Clerk and Recorder of
Larimer County.
k. Change of Conditions. A change in the potential economic value of any use that is
prohibited by or inconsistent with this Covenant, or a change in any current or future uses
of neighboring properties, shall not by itself constitute a change in conditions that makes
it impossible or impractical for continued use of the North Parcel for conservation purposes
and shall not constitute grounds for terminating the Covenant.
1. Obligations Subject to Appropriation. The City's obligations under this Covenant
for subsequent fiscal years are subject to the annual appropriation by the City Council of
the City of Fort Collins, in its sole discretion, of funds sufficient and intended for such
purposes.
in. Good Faith Negotiation/Mediation. Where this Covenant specifies that a decision
requires the mutual agreement of the parties, the parties shall be obligated to make best
efforts to negotiate in good faith to reach mutual agreement consistent with the
Conservation Values and purposes of the Covenant. In the event that such efforts by the
parties fail to result in mutual agreement through negotiation, the parties agree to attempt
to resolve their dispute through mediation. Either parry may commence the mediation
process by providing the other party with written notice setting forth the subject of the
dispute and the solution requested. Within ten (10) days after the receipt of the notice, the
other party shall deliver a written response to the initiating party's notice. The parties agree
to meet with a mutually acceptable mediator to attempt to resolve the dispute. The initial
mediation session shall be held within thirty (30) days after the initial notice, unless the
selected mediator cannot accommodate the parties within that time. If the parties cannot
agree upon a mediator, the City will provide LAPCR with a list of at least three professional
mediation organizations in the Fort Collins/Denver area that are not affiliated with the City
of Fort Collins. LAPCR will select an organization from the list within ten (10) days of
receipt of the list, and the selected organization will be asked to choose a mediator for the
parties. The parties agree to share equally the costs and expenses of the mediation, which
shall not include the expenses incurred by each party for its own legal representation in
connection with the mediation. The provisions of this subparagraph may be enforced by
any court of competent jurisdiction, and the party seeking enforcement shall be entitled to
an award of all costs, fees and expenses, including reasonable attorneys' fees and other
legal costs, to be paid by the party against whom enforcement is ordered.
Page 15 of 17
EXHIBIT A
Exhibit C to Agreement Regarding the Halligan Water Supply Project
TO HAVE AND TO HOLD unto the LAPCR and its successors and assigns forever.
Page 16 of 17
EXHIBIT A
Exhibit C to Agreement Regarding the Halligan Water Supply Project
Exhibit 1
of Restrictive Covenant
(Legal Description of LAPCR's Lands)
* Placeholder until surveyed legal description and depiction are completed pursuant to the
Agreement Between the City of Fort Collins and the Landowners' Association for Phantom
Canyon Ranches Regarding the Halligan Water Supply Project. *
Page 17 of 17
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Protect
SPECIAL WARRANTY DEED
SUBJECT TO RESERVED EASEMENTS AND RESTRICTIVE COVENANT
(Conveyance of Certain Land South of Halligan Dam from the City to LAPCR)
THIS SPECIAL WARRANTY DEED SUBJECT TO RESERVED EASEMENTS
AND RESTRICTIVE COVENANT ("Deed"), made this day of , 20_, by and
between the CITY OF FORT COLLINS, COLORADO, a municipal corporation, whose
mailing address for purposes of this Deed is P.O. Box 580, Fort Collins, Colorado 80522
("Grantor"), and the LANDOWNERS' ASSOCIATION FOR PHANTOM CANYON
RANCHES, a Colorado nonprofit corporation, whose mailing address for the purpose of this Deed
is 1738 Bonny Dr., Loveland, CO 80538 ("Grantee").
WITNESSETH:
That Grantor, for and in consideration of the sum of Dollars ($ .00) and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
and pursuant to Ordinance No. , 20_ approved and adopted by the Fort Collins City Council
on , 20_, and pursuant to the Agreement Between the City of Fort Collins and
the Landowners' Association for Phantom Canyon Ranches Regarding the Halligan Water Supply
Project, dated , 2020, hereby grants, sells, and conveys to Grantee that certain real
property, together with all appurtenances and improvements, if any, situate, lying, and being in
the County of Larimer, State of Colorado more particularly described in Exhibit A of Special
Warranty Deed (Legal Description of the Property), attached hereto consisting of (xxx)
page(s), and incorporated herein by this reference, which real property shall hereinafter be referred
to as "Pro e ", but reserving unto the Grantor, its successors and assigns:
1) an access easement from the west, as described in Exhibit C of Special Warranty
Deed (West Access Easement), attached hereto consisting of (xxx) page(s), and
incorporated herein by this reference;
2) an easement along the North Fork of the Cache la Poudre River, as described in
Exhibit D of Special Warranty Deed (River Access Easement), attached hereto
consisting of (xxx) page(s), and incorporated herein by this reference; and
3) a restrictive covenant on the Property as described in Exhibit E of Special Warranty
Deed (Restrictive Covenant), attached hereto, consisting of page(s), and
incorporated herein by this reference.
TO HAVE AND TO HOLD the Property with the appurtenances and improvements, unto
Grantee, its successors and assigns forever.
AND GRANTOR for itself, its successors and assigns, does covenant and agree that it shall
and will WARRANT AND FOREVER DEFEND the above bargained Property in the quiet and
peaceable possession of the Grantee, its successors and assigns, against all and every person or
persons claiming the whole or any part thereof, by, through, or under Grantor, SUBJECT to the
Page 1 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Proiect
matters set forth on Exhibit B attached hereto and incorporated herein by this reference (the
"Permitted Exceptions").
IN WITNESS WHEREOF, the Grantor has executed this Special Warranty Deed on the
date set forth above.
Date:
ATTEST:
City Clerk
(Print Name)
APPROVED AS TO FORM
Assistant City Attorney
(Print Name)
GRANTOR:
THE CITY OF FORT COLLINS, COLORADO
a Municipal Corporation
Mayor
Page 2 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Proiect
ACCEPTED BY GRANTEE:
Landowners' Association for Phantom Canyon Ranches, a Colorado nonprofit corporation
Date:
STATE OF COLOR -ADO )
ss
COUNTY OF
By:
Brian T. Gray, President
The foregoing instrument was acknowledged before me this day of ,
by Brian T. Gray as President for the Landowners' Association for Phantom Canyon Ranches.
Witness my hand and official seal.
My Commission expires:
Notary Public
Page 3 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Project
EXHIBIT A
OF SPECIAL WARRANTY DEED
(Legal Description and Depiction of the Property)
*Placeholder until surveyed legal description and depiction are completed pursuant to the
Agreement Between the City of Fort Collins and the Landowners' Association for Phantom
Canyon Ranches Regarding the Halligan Water Supply Project *
Page 4 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Protect
sop
Page 5 of 35
R
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Proiect
Page 6 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Proiect
EXHIBIT B
OF SPECIAL WARRANTY DEED
(Permitted Exceptions)
Page 7 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Protect
EXHIBIT C OF SPECIAL WARRANTY DEED
(Retained West Access Easement)
ACCESS EASEMENT FROM THE WEST
WITH TERMS AND CONDITIONS
(Phase 3 (Operations and Maintenance) of the Halligan Water Supply Project)
(Halligan Reservoir and Dam)
THIS OPERATIONS AND MAINTENANCE ACCESS EASEMENT DEED WITH
TERMS AND CONDITIONS ("Easement") is made and entered into this day of
, 202 (the "Effective Date"), by and between THE LANDOWNERS'
ASSOCIATION FOR PHANTOM CANYON RANCHES, a Colorado nonprofit corporation
("LAPCR"), and THE CITY OF FORT COLLINS, COLORADO, a municipal corporation
("City").
RECITALS
A. The City owns Halligan Reservoir ("Reservoir"), an on -channel reservoir generally located
on the North Fork of the Cache la Poudre River ("North Fork"), in portions of Sections 29, 32, 33,
and 34, Township 11 North, Range 71 West of the 6th P.M., as well as certain lands adjacent to
the Reservoir. The visible portions of the Reservoir's dam and outlet works are located on land
owned by the City in the NE1/4 of the SW1/4 of Section 34, Township 11 North, Range 71 West
of the 6th P.M.
B. The City has completed the Halligan Water Supply Project ("Halligan Project"). The
Halligan Project included: the enlargement of the Reservoir, also known as North Poudre
Reservoir No. 16, which primarily entailed replacing or enlarging the Reservoir's dam ("Reservoir
Dam"). The enlarged Reservoir is generally located in portions of Sections 27, 28, 29, 32, 33, and
34, Township 11 North, Range 71 West of the 6th P.M. The Reservoir Dam is generally located
in the NE1/4 of the SW1/4 of Section 34, Township 11 North, Range 71 West of the 6th P.M.
C. By Special Warranty Deed, Subject to Reserved Easements and Restrictive Covenant
("Deed"), to which this Easement is attached, the City has conveyed to LAPCR fee simple title to
certain real property in Larimer County, Colorado (hereinafter the "LAPCR Property"). As set
forth in the Deed, and as described in more detail herein, the City has reserved from the conveyance
of the LAPCR Property, this Easement on, over and across the LAPCR Property as described more
fully on Exhibit 1 of the West Access Easement (Legal Description of Easement Area),
consisting of () page(s), attached to and made a part of this Easement (the "Easement
Area"). It is the express intent of the Parties that Easement Area shall be as defined herein, with
the recognition that the Easement Area shall be: (1) the width of the roads that exist at the time
Phase II (construction) of the Halligan Water Supply Project is completed, including any turnouts;
and (2) an additional 15 feet of width from the edge of the roads on each side of the roads. The
Easement described herein, encumbers and shall run with the LAPCR Property for the benefit of
the City and its successors -in -interest.
Page 8 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Protect
D. The City has retained certain real property adjacent to the LAPCR Property located in
Larimer County, Colorado, which is legally described on Exhibit 2 of West Access Easement
(Legal Description of Adjacent City Property), consisting of page(s) (the "City's
Pro e ") attached to and made a part of this Easement.
E. The City will be responsible for various maintenance, operations, repairs, and other
activities on the Reservoir, Dam, or City -owned lands, including various activities under different
permits and approvals. This work and aspect of the Halligan Project is referred to as "Phase 3
(Operations and Maintenance)."
F. This Easement is intended to document and provide for the City's orderly use of the
LAPCR Property during Phase 3 (Operations and Maintenance) for access to the Dam and to better
protect LAPCR from the City's use of the LAPCR Property.
G. In exchange for the promises and consideration set forth in this Easement, the adequacy of
which is hereby acknowledged, the City and LAPCR agree as follows.
AGREEMENT AND EASEMENT
1. Purpose and Uses of Easement. This Easement shall be a perpetual, non-exclusive access
easement and does not in any way grant any fee title or any other interest to the City except as set
forth herein. The reservation of this Easement is for the benefit of the City's Property. The City,
and including its employees, agents, personnel, staff, contractors, service providers, successors,
assigns, or any other person or entity that has the express permission of the City in connection with
the Halligan Project (collectively the "City Parties") may enter upon and use the Easement Area
as required for the sole purpose of accessing the City's Property and accessing the River Access
Easement described in Exhibit D of the Deed. Said access may be conducted on foot and/or by
vehicle subject to the further terms and conditions set forth herein. Such access shall be limited
for the purposes required for Phase 3 (Operation and Maintenance) of the Halligan Project.
2. City's Obligations
a. The City will not install any improvements in the Easement Area beyond potential
road improvements pursuant to Paragraph 2.h or repairs pursuant to Paragraph 2.i.
b. Use of the Easement Area shall at all times be in conformity with all applicable
laws, statutes, regulations and ordinances, including all environmental laws.
C. The City's access to the Easement Area must be scheduled and conducted so as to
minimize, to the extent practicable, the impacts to the LAPCR Property and LAPCR's use
thereof. City personnel will notify LAPCR at least 24 hours in advance of any proposed
visit via email and/or telephone. LAPCR will provide City personnel with an up-to-date,
email and telephone number for such purposes.
Page 9 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Protect
d. The City and City Parties shall not undertake any activity that would prevent access
to LAPCR across the Easement Area or other LAPCR Property or violate LAPCR's right
of quiet enjoyment of the Easement Area or other LAPCR Property except to the extent
the activities of the City or City Parties are authorized under this Easement.
C. The City and City Parties will not use the Easement Area as a vehicle parking,
equipment, or materials storage area. If any vehicle, equipment or materials are parked or
stored on the Easement Area overnight without permission from LAPCR, then LAPCR, in
its sole discretion, may have such vehicle, equipment or materials removed at the City's
sole cost and expense.
f. The City and City Parties will only drive at reasonable speeds that do not create
unsafe situations or damage the road.
g. The City, at its sole cost and expense, must promptly repair any and all damage to
the Easement Area, including the road and adjacent LAPCR Property, resulting from the
City's activities under this Easement, including activities of the City Parties, and return the
Easement Area and LAPCR Property, including landscape, shrubs, trees, soil conditions,
and other physical site conditions, to their original state existing prior to the damage, all to
the reasonable satisfaction of LAPCR and at no cost to LAPCR. If the City fails to
promptly make repairs to the Easement Area and/or LAPCR Property, LAPCR shall give
to the City written notice of the required repairs and if such repairs are not completed by
the City within thirty (30) days or, if such work cannot be reasonably completed in thirty
(30) days, as soon as practicable thereafter, after notice of the required repairs is given to
the City, LAPCR shall have the right to perform such repair work and shall be entitled to
reimbursement from the City for all costs and expenses incurred by LAPCR in performing
such repair work upon demand, together with interest on such amounts at the rate of 8%
per annum from the date incurred by LAPCR until repaid by the City. Any work by the
City in the Easement Area or on the LAPCR Property must be performed in a safe and
sanitary manner and a good and workmanlike manner, and in compliance with all
applicable laws.
h. The City may not make any improvements to the Easement Area or LAPCR
Property without the prior written consent of LAPCR, which consent may be granted or
withheld in the sole and absolute discretion of LAPCR.
LAPCR's Rights. LAPCR reserves the right to use and occupy the Easement Area for any
purposes not inconsistent with the City's rights granted in this Easement.
4. Maintenance of the Easement Area.
a. LAPCR will not alter existing roadways in any way that might materially interfere
with access by the City to the to the Reservoir Dam or North Fork. LAPCR will maintain
the surface of the Easement Area to the same extent that LAPCR maintains its other roads.
Page 10 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Protect
b. LAPCR and the City will not deposit, or permit or allow to be deposited, earth,
rubbish, debris, or any other substance or material, whether combustible or
noncombustible, on the Easement Area.
5. Enforcement. In the event that either parry defaults in its obligations under this Easement,
the defaulting party shall have thirty (30) days from the delivery of written notice of such default
from the non -defaulting party in which to cure such default, or such longer period if the default is
not able to reasonably be cured within such time period (the "Cure Period"). In the event that the
defaulting party fails to cure the default within the Cure Period, then the non -defaulting party shall
be entitled to bring an action for damages and/or negative or affirmative injunctive relief, and to
seek any other right or remedy available at law or in equity. The failure to enforce any provision
hereof shall not constitute a waiver of such provision or any right or remedy arising therefrom.
6. Representations of the City. The City states that it has good and lawful right and authority
to reserve this Easement.
7. Insurance. The City shall maintain a comprehensive policy of general liability insurance
covering the City's use of the Easement Area under this Easement, insuring the City in an amount
not less than One Million Dollars ($1,000,000.00) per occurrence, covering bodily injury,
including death to persons, personal injury, and property damage liability arising out of a single
occurrence. Such coverage must include, without limitation, the insured's liability for property
damage, bodily injuries, and death of persons in connection with the operation, maintenance, or
use of the Easement Area and/or LAPCR Property (including acts or omissions of the City or of
its officers, employees, agents or guests), and protection against liability for non -owned and hired
automobiles and other vehicles or equipment.
For each and every one of the City Parties using the Easement Area the City will provide to LAPCR
prior to use of the Easement, or shall require the respective City Parties, to provide certificates of
insurance for general liability policies, commercial automobile policies, and workers
compensation policies. In the event the City fails or neglects to maintain, or require the City
Parties to procure and maintain, as applicable, the insurance required by this paragraph, then
LAPCR shall have the right to refuse entry to such party.
8. Additional Terms on the Use of the Property.
a. Use of the LAPCR Property is subject to the Declaration of Easements, the
Covenants, and the Rules and Regulations of LAPCR.
b. The City shall be deemed to have accepted the Easement Area in its present
condition, as is, where is, with all faults, patent and latent, without any representations or
warranties whatsoever by LAPCR, its agents, guests or employees. The City assumes all
risks associated with use of the Easement Area. The City acknowledges that neither
LAPCR nor any of LAPCR's agents have made any representations or warranties
whatsoever regarding the Easement Area. The City assumes all risk that any adverse matter
of whatever kind or nature including, but not limited to the physical condition of the
Easement Area that may arise in the future. Except as stated otherwise in Paragraph 4.a,
Page 11 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Protect
LAPCR shall have no obligation to the City to maintain the Easement Area in its present
condition or to improve the Property for the City's use.
C. To the extent permitted by law and without waiving its right to governmental
immunity, the City shall be deemed to have released LAPCR, its officers, directors,
members, guests, agents, and employees and their respective heirs, personal
representatives, successors, and assigns ("Released/Indemnified Parties") from and against
any and all claims, demands, actions, suits, and proceedings of whatever kind or nature that
the City may now have or may have at any time in the future arising out of or as a result of
the present or any future condition of the Easement Area and LAPCR Property.
d. To the extent permitted by law and without waiving its right to governmental
immunity, the City shall defend, indemnify and hold harmless the Released/Indemnified
Parties from and against any and all loss, cost, and expense including attorneys' fees arising
out of, as a result of, or in connection with any claim made against the
Released/Indemnified Parties as a result of the use or misuse of the of the Easement Area
by the City or the City Parties. To the extent permitted by law and without waiving its
right to governmental immunity, the City shall also defend, indemnify and hold harmless
the Released/Indemnified Parties and the LAPCR Property from and against any and all
loss, cost, and expense including attorneys' fees arising out of, as a result of, or in
connection with any claim made against the Released/Indemnified Parties as a result of the
any work performed on the Easement Area or LAPCR Property by the City, its agents,
guests, employees, contractors, including but not limited to mechanic's lien claims.
e. Nothing herein shall be deemed to be a grant or dedication of any portion of the
Easement Area or LAPCR Property to or for the general public, it being the intention of
the parties hereto that this Easement be strictly limited to the purposes expressed herein.
9. Default and Litigation Expenses. If a party to this Easement is in default in performance
of its respective obligations hereunder, the other party has the right to an action for specific
performance or damages or both. Prior to proceeding with any such action, the party not in default
must first send written notice to the defaulting party specifying the default and affording such party
a reasonable period to cure the default, but in no event shall the period to cure the default extend
beyond 90 days. In the event a party defaults in any of its covenants or obligations and the party
not in default commences and substantially prevails in any legal or equitable action against the
defaulting party, the defaulting party expressly agrees to pay all reasonable expenses of the
litigation, including a reasonable sum for attorneys' fees or similar costs of legal representation.
10. Additional Terms and Conditions. Whenever used herein, the singular number includes
the plural, the plural the singular; and the use of any gender is applicable to all genders. All of the
covenants herein contained are binding upon and inure to the benefit of the parties hereto and their
personal representatives, successors and assigns. If any term of this Easement is determined by
any court to be unenforceable, the other terms of this Easement 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
Page 12 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Hallillan Water Supply Protect
to adopt mutually agreeable amendments to this Easement as may be necessary to restore the
parties as closely as possible to the initially agreed upon relative rights and obligations.
TO HAVE AND TO HOLD unto the Grantee and its successors and assigns forever.
[Remainder of Page Intentionally Blank]
Page 13 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Project
Exhibit 1
of West Access Easement
(Legal Description and Depiction of Easement Area)
*Placeholder until surveyed legal description and depiction are completed pursuant to the
Agreement Between the City of Fort Collins and the Landowners' Association for Phantom
Canyon Ranches Regarding the Halligan Water Supply Project *
Page 14 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Pro*ect
I OF]
Page 15 of 35
z
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Proiect
Page 16 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Project
Exhibit 2
of West Access Easement
(Legal Description of Adjacent City Property)
* Placeholder until surveyed legal description and depiction are completed pursuant to the
Agreement Between the City of Fort Collins and the Landowners' Association for Phantom
Canyon Ranches Regarding the Halligan Water Supply Project *
Page 17 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Proiect
EXHIBIT D OF SPECIAL WARRANTY DEED
(Retained River Access Easement)
RIVER ACCESS EASEMENT
WITH TERMS AND CONDITIONS
(Phase 3 (Operations and Maintenance) of the Halligan Water Supply Project)
(Access to North Fork of the Cache la Poudre River)
THIS RIVER ACCESS EASEMENT DEED WITH TERMS AND CONDITIONS
("Easement") is made and entered into this day of , 2020 (the "Effective
Date"), by and between The Landowners' Association for Phantom Canyon Ranches, a
Colorado nonprofit corporation ("LAPCR"), and THE CITY OF FORT COLLINS,
COLORADO, a municipal corporation ("City").
RF.CITAI N
A. The City has completed the Halligan Water Supply Project ("HalliganProject"). The
Halligan Project included: the enlargement of Halligan Reservoir, also known as North Poudre
Reservoir No. 16 ("Reservoir"), which primarily entailed replacing or enlarging the Reservoir's
dam ("Reservoir Dam");.1 and the replacement of the diversion structure for the North Poudre
Canal and related infrastructure ("Diversion Structure',).2 on the North Fork of the Cache la Poudre
River ("North Fork"). The Diversion Structure and portions of the North Fork are located on land
owned by LAPCR.
B. By the Special Warranty Deed, Subject to Reserved Easements and Restrictive Covenant
("Deed"), to which this Easement is attached, the City has conveyed to LAPCR fee simple title to
certain real property in Larimer County, Colorado (hereinafter the "LAPCR Property"). As set
forth in the Deed, and as described in more detail herein, the City has reserved from the conveyance
of the LAPCR Property, this Easement on, over and across the LAPCR Property as described more
fully on Exhibit 1 of River Access Easement (Legal Description of Easement Area), consisting
of () page(s), attached to and made a part of this Easement (the "Easement Area"). The
Easement is on, over, and across the North Fork, including its bed and fifty (50) horizontal feet
from the then -existing water line along each of its banks, where it crosses the LAPCR Property. It
is the express intent of the Parties that Easement Area shall be as defined herein, with the
recognition that: (1) the Easement Area's specific width will fluctuate as the waters of the North
Fork rise and fall, with the Parties' intent being that the TAE Area's specific width at any given
time be the sum of fifty (50) horizontal feet on one bank plus the actual width of the North Fork
between its water lines plus (50) horizontal feet on the other bank; and (2) the Easement Area's
specific location on the Property will move with the North Fork as it moves due to erosion,
deposition, and other forces, with the Parties' intent being that the Easement Area's specific location
' The Reservoir is an on -channel reservoir located on the North Fork, in portions of Sections 32, 33, and 34,
Township 11 North, Range 71 West of the 6th P.M. The Reservoir Dam is located in the NE1/4 of the SW1/4 of
Section 34, Township 11 North, Range 71 West of the 6' P.M.
2 The Diversion Structure is located in the North Fork in the SE1/4 of Section 12, Township 10 North, Range 71
West of the 6th P.M.
Page 18 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Hallman Water Supply Proiect
move with the actual location of the North Fork, provided however, that the Easement Area not
extend farther up or downstream.
C. The Easement described herein, encumbers and shall run with the LAPCR Property for the
benefit of the City and its successors -in -interest. The non-exclusive Easement described herein,
encumbers, and shall run with the Property for the benefit of the City and its successors -in -interest.
D. The City will be responsible, among other things, for the permanent maintenance of
measuring devices on the North Fork to satisfy environmental monitoring requirements under the
governmental permits and approvals. The City will also need access for surveys and sampling
below the Reservoir Dam and along the North Fork to monitor the long-term effects of the
Reservoir enlargement. This work and aspect of the Halligan Project is referred to as "Phase 3
(Operation and Maintenance)."
E. As part of Phase 3 (Operations and Maintenance) of the Halligan Project, City personnel
and certain other people associated with the Halligan Project (which people are identified below)
need to cross the LAPCR Property in the Easement Area to access the North Fork for certain
limited purposes described herein.
F. This Easement is intended to document and provide for the City's orderly use of the
LAPCR Property in the Easement Area during Phase 3 (Operations and Maintenance) for access
to the North Fork and to better protect LAPCR from the City's use of the Property. As set forth
below, the City is reserving access across the Property for Phase 3 (Operations and Maintenance),
pursuant to the terms and conditions of this Easement.
G. In exchange for the promises and considerations set forth in this Easement, the adequacy
of which is hereby acknowledged, the City and LAPCR agree as follows.
AGREEMENT AND EASEMENT
1. Purpose and Uses of Easement. This Easement shall be a perpetual non-exclusive access
easement and does not in any way grant any fee title or any other interest to the City except as set
forth herein. The City has reserved the Easement for the sole purposes of. habitat evaluation
studies, such as fish and macroinvertebrate surveys; topographic and geomorphic surveys; water
quality and other environmental sampling; and other site visits, studies, and investigations as
required of the City in association with the Halligan Project (collectively the "Easement Purpose").
The City's use of the Easement Area must be directly related to the Halligan Project as further
described in this Paragraph 1. The City's use of the Easement Area must only be between the
hours of 8AM and sunset, Monday through Friday, not including federal holidays. The City's use
of the Easement Area must only be by foot or non -motorized boat.
The City is hereby authorized to access the Easement Area only to gain entrance to the
North Fork for site visits and data collection in connection with the Easement Purpose. City
personnel may bring only the following guests with them during site visits: personnel from and
consultants for governmental agencies involved in the various permitting, approval, and
monitoring processes for the Halligan Project including but not limited to: the U.S. Army Corps
Page 19 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Proiect
of Engineers, U.S. Fish and Wildlife Service, Colorado State Engineer's Office, Colorado
Department of Public Health and Environment, and Colorado Parks and Wildlife (the "City
Parties"). On most occasions the City Parties will be accompanied by City personnel.
Nevertheless, a City Party working on the City's behalf access may access the Easement Area
without the presence of City personnel for purposes of Phase 3 (Operations and Maintenance) of
the Halligan Project. Nothing in this Easement shall be construed to create a right to access the
Easement Area for any person or entity other than the City or City Parties. The City's use of this
Easement shall be limited in scope and time to only certain days and certain time which are
required to meet any legal or regulatory requirements, including compliance monitoring and other
requirements of permits and approvals associated with the Halligan Project and the City's water
utility.
2. City's Obligations
a. The City and City Parties will not install any improvements in the Easement Area,
provided that the City and Cities Parties may install small equipment (e.g., ground water
monitoring wells, data recorders, location markers) required to meet any legal or regulatory
requirements, including compliance monitoring and other requirements of permits and
approvals associated with the Halligan Project and the City's water utility, provided further
that such equipment is installed by hand or manual tools.
b. Use of the Easement Area shall at all times be in conformity with all applicable
laws, statutes, regulations and ordinances, including environmental laws.
C. The City's access to the Easement Area must be scheduled and conducted so as to
minimize, to the extent practicable, the impacts to the Property and LAPCR's use thereof.
City personnel will notify LAPCR at least 24 hours in advance of any proposed data
collection or site visit via email and/or telephone. LAPCR will provide City personnel
with an up-to-date, email and telephone number for such purposes.
d. The City may reach the Easement Area from either (i) adjacent real property owned
by the City, or (ii) the west access easement reserved by the City over the LAPCR Property.
In the event that the City is unable to access the Easement Area from either (i) or (ii) herein,
then the City is solely responsible for acquiring access across such other lands in order to
reach and use the Easement Area under this Easement.
e. The City or City Parties shall not undertake any activity that would prevent access
to LAPCR across the Easement Area or violate LAPCR's right of quiet enjoyment of the
LAPCR Property.
f. The City, at its sole cost and expense, must promptly repair any and all damage to
the Easement Area resulting from the City's activities under this Easement, including
activities of the City Parties, and return the Easement Area and LAPCR Property, including
landscape, shrubs, trees, soil conditions, and other physical site conditions, to their original
state existing prior to the damage, all to the reasonable satisfaction of LAPCR, and at no
cost to LAPCR. If the City fails to promptly make repairs to the Easement Area and/or
Page 20 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Protect
LAPCR Property, LAPCR shall give to the City written notice of the required repairs. If
such repairs are not completed by the City within thirty (30) days or, if such work cannot
be reasonably completed in thirty (30) days, as soon as practicable thereafter, LAPCR shall
have the right to perform such repair work. In such an event, LAPCR shall be entitled to
reimbursement from the City for all costs and expenses incurred by LAPCR in performing
such repair work upon demand, together with interest on such amounts at the rate of 8%
per annum from the date incurred by LAPCR until repaid by the City. Any work by the
City in the Easement Area or on the LAPCR Property must be performed in a safe and
sanitary manner and a good and workmanlike manner, and in compliance with all
applicable laws.
3. LAPCR's Rights. LAPCR reserves the right to use the Easement Area for any purposes
not inconsistent with the City's rights reserved in this Easement. LAPCR will not erect or
construct any structure or improvement, or drill or operate any well, construct any reservoir or
impoundment or other obstruction, install or plant any trees or woody shrubs, or otherwise improve
the Easement Area or change the ground level in the Easement Area during the term of this
Easement without the prior written consent of the City, which such consent shall not be
unreasonably withheld.
4. Maintenance of the Easement Area.
a. LAPCR is not responsible for any conditions directly caused by the City's or City
Parties' use and occupancy of the Easement Area.
b. LAPCR and the City will not deposit, or permit or allow to be deposited, earth,
rubbish, debris, or any other substance or material, whether combustible or
noncombustible, on the Easement Area.
5. Enforcement. In the event of any violation of the terms of this Easement, each party shall
be entitled to bring an action for damages and/or negative or affirmative injunctive relief, and to
seek any other right or remedy available at law or in equity. The failure of either parry to enforce
any provision hereof shall not constitute a waiver of such provision or any right or remedy arising
therefrom.
6. Representations of the City. The City states that it has good and lawful right and authority
to reserve this Easement.
7. Insurance. The City shall maintain a comprehensive policy of general liability insurance
covering the City's use of the LAPCR Property under this Easement and insuring the City in an
amount not less than One Million Dollars ($1,000,000.00) per occurrence covering bodily injury,
including death to persons, personal injury, and property damage liability arising out of a single
occurrence. Such coverage must include, without limitation, the insured's liability for property
damage, bodily injuries, and death of persons in connection with the operation, maintenance, or
use of the LAPCR Property (including acts or omissions of the City or of its officers, employees,
agents or guests), and protection against liability for non -owned and hired automobiles and other
vehicles or equipment.
Page 21 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Protect
For each and every one of the City Parties using the Easement Area, the City will provide to
LAPCR prior to use of the Easement, or shall require the respective City Parties to provide
certificates of insurance for general liability policies, commercial automobile policies and workers
compensation policies. In the event the City fails or neglects to maintain, or to require its
contractors to procure and maintain, as applicable, the insurance required by this paragraph, then
LAPCR shall have the right to refuse entry to such contractor.
8. Additional Terms on the Use of the Property.
a. Use of the Property is subject to the Declaration of Easements, the Covenants, and
the Rules and Regulations of LAPCR.
b. The City shall be deemed to have accepted the Easement Area in its present
condition, as is, where is, with all faults, patent and latent, without any representations or
warranties whatsoever by LAPCR, its agents or employees. The City assumes all risks
associated with use of the Easement Area. The City acknowledges that neither LAPCR
nor any of LAPCR's agents have made any representations or warranties whatsoever
regarding the Easement Area. The City assumes all risk that any adverse matter of
whatever kind or nature including, but not limited to the physical condition of the Easement
Area or LAPCR Property that may arise in the future. LAPCR shall have no obligation to
the City to maintain the Easement Area in its present condition or to improve the Easement
Area for the City's use.
C. To the extent permitted by law and without waiving its right to governmental
immunity, the City shall be deemed to have released LAPCR, its officers, directors,
members, agents, guests and employees and their respective heirs, personal representatives,
successors, and assigns ("Released/Indemnified Parties") from and against any and all
claims, demands, actions, suits, and proceedings of whatever kind or nature that the City
may now have or may have at any time in the future arising out of or as a result of the
present or any future condition of the Easement Area and LAPCR Property.
d. To the extent permitted by law and without waiving its right to governmental
immunity, the City shall defend, indemnify and hold harmless the Released/Indemnified
Parties from and against any and all loss, cost, and expense including attorneys' fees arising
out of, as a result of, or in connection with any claim made against the
Released/Indemnified Parties as a result of the use or misuse of the Easement Area by the
City or City Parties. To the extent permitted by law and without waiving its right to
governmental immunity, the City shall also defend, indemnify and hold harmless the
Released/Indemnified Parties and the LAPCR Property from and against any and all loss,
cost, and expense including attorneys' fees arising out of, as a result of, or in connection
with any claim made against the Released/Indemnified Parties as a result of the any work
performed on the Easement Area or LAPCR Property by the City, its agents, employees,
contractors, including but not limited to mechanic's lien claims.
Page 22 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Hallillan Water Supply Protect
e. Nothing herein shall be deemed to be a grant or dedication of any portion of the
Easement Area or LAPCR Property to or for the general public, it being the intention of
the parties hereto that this Easement be strictly limited to the purposes expressed herein.
9. Default and Litigation Expenses. If a party to this Easement is in default in performance
of its respective obligations hereunder, the non -defaulting party has the right to an action for
specific performance or damages or both. Prior to proceeding with any such action, the non -
defaulting party must first send written notice to the defaulting party specifying the default and
affording such party a reasonable period to cure the default, but in no event shall the period to cure
the default extend beyond 45 days. In the event a party defaults in any of its covenants or
obligations and the non -defaulting party commences and substantially prevails in any legal or
equitable action against the defaulting party, the defaulting party expressly agrees to pay all
reasonable expenses of the litigation, including a reasonable sum for attorneys' fees or similar costs
of legal representation.
10. Additional Terms and Conditions. Whenever used herein, the singular number includes
the plural, the plural the singular; and the use of any gender is applicable to all genders. All of the
covenants herein contained are binding upon and inure to the benefit of the parties hereto and their
personal representatives, successors and assigns. If any term of this Easement is determined by
any court to be unenforceable, the other terms of this Easement 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 Easement as may be necessary to restore the
parties as closely as possible to the initially agreed upon relative rights and obligations.
TO HAVE AND TO HOLD unto the City and its successors and assigns forever.
[Remainder of Page Intentionally Blank]
Page 23 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Project
Exhibit 1
of River Access Easement
(Legal Description and Depiction of Easement Area)
* Placeholder until surveyed legal description and depiction are completed pursuant to the
Agreement Between the City of Fort Collins and the Landowners' Association for Phantom
Canyon Ranches Regarding the Halligan Water Supply Project *
Page 24 of 35
Exhibit D-1 to Agreement Retarding the Halligan Water Supply Project
EXHIBIT A
OIL
0
0
b
0
3
0
Page 25 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Proiect
Page 26 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Proiect
EXHIBIT E OF SPECIAL WARRANTY DEED
(Restrictive Covenant)
DECLARATION OF RESTRICTIVE COVENANT
THIS DECLARATION OF RESTRICTIVE COVENANT ("Covenant") is made this
day of , 202_, by the LANDOWNERS' ASSOCIATION FOR
PHANTOM CANYON RANCHES, INC., a Colorado nonprofit corporation ("LAPCR"), in
favor of the CITY OF FORT COLLINS, COLORADO, a municipal corporation ("Cily").
RECITALS:
WHEREAS, by the Special Warranty Deed, Subject to Reserved Easements and Restrictive
Covenant ("Deed"), to which this Covenant is attached, the City has conveyed to LAPCR fee
simple title to certain real property described on Exhibit A of the Special Warranty Deed
(hereinafter the "Property"). As set forth in the Deed, and as described in more detail herein, the
City has reserved from the conveyance of the Property, the Covenant described herein, which
encumbers and shall run with the Property for the benefit of the City and its successors -in -interest.
This Covenant is subject to additional reservations by the City of two access easements that are
also attached to the Deed, namely the "West Access Easement" and the "River Access Easement"
which easements convey certain access rights to the City over the Property.
WHEREAS, the Property possesses natural, scenic, and open space values (collectively,
"Conservation Values") of great importance to LAPCR, the City, and the people of Larimer
County.
WHEREAS, this Covenant shall encumber and run with the Property for the benefit of the
City and its successors in interest.
WHEREAS, the Conservation Values of the Property include views of the mountain
backdrop to Halligan Reservoir and surrounding foothills, wildlife habitat, and the aesthetic value
as open space.
WHEREAS, LAPCR and the City desire to place a Covenant upon the Property for the
purpose of protecting the Conservation Values.
NOW, THEREFORE, in consideration of the above and the mutual covenants, terms,
conditions, and restrictions contained herein and pursuant to the laws of the State of Colorado, the
LAPCR and the City, on behalf of themselves and their successors and assigns, hereby
acknowledge and agree to the following Covenant in perpetuity over the Property of the nature
and character and to the extent hereinafter set forth.
1. Purpose. The purpose of this Covenant is to ensure that the Property will be retained
predominately for its Conservation Values and for water utility purposes related to Halligan
Reservoir, and to prevent any use of the Property that will significantly impair or interfere with
the Conservation Values. The Covenant will facilitate meeting the terms and conditions of
Page 27 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Proiect
approval and permits needed for the enlargement of Halligan Reservoir, including mitigation -
related items, and to help maintain the quality of water in the North Fork of the Cache la Poudre
River, which is beneficial to the City and its water utility for various reasons and purposes. The
City intends that this Covenant will restrict the use of the Property to activities that are consistent
with the Conservation Values. The Property shall not be used for activities that significantly
diminish the Conservation Values. These covenants, conditions and restrictions are hereby
imposed on the Property.
2. Submission of Property to Restrictive Covenants. The City hereby impresses and imposes
upon the Property the covenants, conditions, and restrictions set forth and provided for herein.
This Covenant shall be binding upon LAPCR, its successors, assigns, and grantees. The Property
shall be held, sold and conveyed subject to all of the covenants, conditions, and restrictions set
forth herein, which will run with the land and title, and the grantee of any deed conveying the
Property or any portion thereof will be deemed by the acceptance of such deed to have agreed to
all such covenants, conditions, and restrictions, and to have covenanted to observe, comply with
and be bound by all such covenants, conditions and restrictions.
3. Use and Management of the Property. The City shall be entitled to use the Property only
in accordance with the West Access Easement and the River Access Easement. The City's use of
the Property in accordance with the West Access Easement and River Access Easement is subject
to all terms and obligations contained in this Covenant. LAPCR, its successors, assigns, and
grantees shall be entitled to own and use the Property for all activities that are not materially
inconsistent with the purposes of this Covenant and subject to any applicable terms and conditions
set forth below in the following subparagraphs:
a. No Structures or Development. No structures shall be permitted on the Property,
except for those in the River Access Easement Area that are required for the Halligan
Project (e.g., ground water monitoring wells and data loggers). No development of the
Property for commercial, industrial, or residential purposes shall be allowed.
b. Motorized Vehicles. Use of motorized vehicles on the Property shall be limited to
the Easement Areas identified in the West Access Easement and any parking areas
designated by LAPCR, its successors, assigns, and grantees, except as needed for
maintenance, emergencies, monitoring, and enforcement, or as required for compliance
with the Americans with Disabilities Act or similar laws.
C. Fences. Any existing fences may be repaired or replaced, and new fences may be
built for purposes of reasonable and customary management of livestock and wildlife. All
new fences shall be designed and constructed to be friendly to wildlife, such as, for example
only, those identified by the Colorado Division of Parks and Wildlife wildlife -friendly
fencing design standards.
d. Subdivision. No division or subdivision of title to the Property is permitted.
Nothing in this subparagraph shall be construed to prohibit joint ownership of the Property
or ownership of the Property by an entity consisting of more than one member.
Page 28 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Protect
e. Grazing. Livestock grazing may occur only in accordance with sound stewardship
and management practices, such as, for example only, those in the Natural Resources
Conservation Service Field Office Technical Guide. For purposes of this Covenant,
"livestock" shall mean cattle, horses, llamas, alpaca, and bison. No domesticated sheep or
goats shall be allowed to graze.
f. Trash and Storage of Materials. The dumping or uncontained accumulation of any
kind of trash or refuse on the Property, including but not limited to household trash and
hazardous chemicals, is strictly prohibited. No storage of any vehicles, trailers, boats, etc.
is allowed.
g. Mineral Rights. LAPCR, its successors, assigns, and grantees shall not develop, or
lease or sell to others for development, any mineral rights associated with Property without
the written consent of the City.
LAPCR, its successors, assigns, and grantees, may impose additional limits and restrictions on the
use of the Property provided that they do not materially impact the City's rights to use the Property
(including those reserved under the West Access Easement or River Access Easement) and that
they are otherwise consistent with applicable law.
4. Reserved Rights. Subject to interpretation under Paragraph 16, LAPCR reserves unto
itself, and to its beneficiaries, trustees, successors, and assigns, all rights accruing from its
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 specifically prohibited or inconsistent with any of the purposes
of the Covenant or with the conditions, restrictions or other terms of this Covenant.
5. Rights of City. To accomplish the purposes of the Covenant, LAPCR conveys to the City
the right to proceed at law or in equity to enforce the provisions of this Covenant, to prevent the
occurrence of any of the prohibited activities set forth herein, and to require the restoration of areas
or features of the Property that may be damaged by any activity inconsistent with this Covenant.
Enforcement.
a. If the City finds what it believes is a violation of this Covenant, the City shall notify
LAPCR in writing of the nature of the alleged violation. Upon receipt of this written notice,
LAPCR shall either: (a) restore the Property to its condition prior to the violation; or (b)
provide a written explanation to the City of the reason why the alleged violation should be
permitted.
b. In the event that the parties are in dispute as to the actions required of the LAPCR
hereunder, LAPCR and City will meet as soon as possible to resolve the difference. If
either LAPCR or the City determine that mediation would be advantageous in connection
with such meeting, or if a resolution of this difference cannot be achieved at the meeting,
both parties agree to attempt to resolve the dispute through the process described in
Paragraph 18.m. Should the parties fail to resolve the dispute, or if, in the City's opinion,
an ongoing or imminent violation could irreversibly diminish or impair the Conservation
Values of the Property or will not otherwise be resolved in a sufficiently prompt and
Page 29 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Protect
effective manner, the City may, at its discretion, take such legal action and seek such legal
or equitable remedies as it determines to be appropriate or necessary, regardless of whether
a dispute resolution process has been initiated or completed. Such remedies may include,
without limitation, an injunction to stop an alleged violation, temporarily or permanently,
or an order requiring LAPCR to restore the Property to its condition prior to the alleged
violation. LAPCR shall discontinue any activity which could increase or expand the
alleged violation during any dispute resolution process or any legal proceeding pertaining
to the alleged violation.
C. The City may enforce the terms of this Covenant at its discretion, but if LAPCR, or
its successors or assigns, breach any term of this Covenant and the City does not exercise
its rights under this Covenant, the City's forbearance shall not be construed to be a waiver
by the City of such term, or of any subsequent breach of the same or any other term of this
Covenant, or of any of the City's rights under this Covenant. No delay or omission by the
City in the exercise of any right or remedy upon any breach by LAPCR shall impair such
right or remedy or be construed as a waiver. The City shall not be obligated to LAPCR, or
to any other person or entity, to enforce the provisions of this Covenant.
7. Costs of Enforcement. Any costs reasonably incurred by the City in enforcing a breach of
the terms of this Covenant against LAPCR, including, without limitation, costs of suit and
reasonable attorneys' fees, and any costs of restoration necessitated by LAPCR's violation of the
terms of this Covenant, shall be borne by LAPCR. If LAPCR prevail in any action to enforce an
alleged breach of the terms of this Covenant, LAPCR's costs of suit, including, without limitation,
reasonable attorneys' fees, shall be borne by the City.
Intentionally Omitted.
9. Acts Beyond LAPCR's Control. Nothing contained in this Covenant shall be construed to
entitle the City to bring any action against LAPCR for any injury to or change in the Property
resulting from causes beyond LAPCR's control, including, without limitation, fire, flood, drought,
storm, landslides and seismic activity, or from any prudent action taken by LAPCR under
emergency conditions to prevent, abate, or mitigate significant injury to the Property resulting
from such causes.
10. Access. No right of access by the general public to any portion of the Property is conveyed
to the City by this Covenant.
it. Costs and Liabilities. LAPCR retains all responsibilities and shall bear all costs and
liabilities of any kind related to the ownership, operation, upkeep, repair, and maintenance of the
Property, including the maintenance of adequate comprehensive general liability insurance
coverage. LAPCR shall keep the Property free of any liens arising out of any work performed for,
materials furnished to, or obligations incurred by LAPCR. No provision of this Covenant shall be
construed as impairing the ability of LAPCR to use the Property as collateral for borrowing,
provided that any mortgage or lien arising from such borrowing is expressly subordinated to this
Covenant.
Page 30 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Project
12. Taxes. Intentionally Omitted.
13. Liability.
a. General Indemnification. LAPCR is responsible for its own negligence and that
of its officers, employees, and agents. Nothing in this Covenant shall be construed as
giving rise to any right or ability in, nor shall the City have any right or ability to exercise
physical or managerial control over the day-to-day operations of the Property, or otherwise
to become an operator with respect to the Property within the meaning of The
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended.
b. No Waiver of Governmental Immunity. Anything else in this Covenant to the
contrary notwithstanding, no term or condition of this Covenant shall be construed or
interpreted as a waiver, either express or implied, of any of the immunities, rights, benefits
or protection provided to the City under the Colorado Governmental Immunity Act as
amended or as may be amended in the future (including, without limitation, any
amendments to such statute, or under any similar statute which is subsequently enacted),
subject to any applicable provisions of the Colorado Constitution and applicable laws.
14. Environmental Warranty and Indemnification. To the best of LAPCR's knowledge,
LAPCR represents that it is in compliance with, and shall remain in compliance with, all applicable
Environmental Laws. LAPCR warrants that there are no notices by any governmental authority
of any violation or alleged violation of, non-compliance or alleged non-compliance with or any
liability under any Environmental Law relating to the operations or conditions of the Property.
LAPCR further warrants that it has no actual knowledge of a release or threatened release of
Hazardous Materials, as such substances and wastes are defined by applicable federal and state
law.
"Environmental Law" or "Environmental Laws" means any and all Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes, guidelines, policies
or requirements of any governmental authority regulating or imposing standards of liability
or standards of conduct (including common law) concerning air, water, solid waste,
hazardous materials, worker and community right -to -know, hazard communication, noise,
radioactive material, resource protection, subdivision, inland wetlands and watercourses,
health protection and similar environmental health, safety, building and land use as may
now or at any time hereafter be in effect.
"Hazardous Materials" means any petroleum, petroleum products, fuel oil, waste oils,
explosives, reactive materials, ignitable materials, corrosive materials, hazardous
chemicals, hazardous wastes, hazardous substances, extremely hazardous substances, toxic
substances, toxic chemicals, radioactive materials, infectious materials and any other
element, compound, mixture, solution or substance which may pose a present or potential
hazard to human health or the environment."
Page 31 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Proiect
15. Recordation/Subsequent Transfers. The City shall record this instrument in timely fashion
in the official records of Larimer County, and may re-record it at any time as may be required to
preserve its rights in this Covenant. The LAPCR will notify the City in advance of the proposed
conveyance of any interest in all or any portion of the Property, and shall incorporate the terms of
the Covenant in any deed, Covenant or other legal instrument by which it divests itself of any
interest in all or a portion of the Property, except that for any lease the LAPCR need not incorporate
the terms of the Covenant into such lease, but must notify all tenants in writing of this Covenant
and advise such tenants that their lease is subject to the terms of this Covenant. The LAPCR
further agrees to give written notice to the City of the proposed transfer of any interest at least
thirty (30) days prior to the LAPCR's creation of a legal obligation to carry out any such transfer.
The failure of the City or LAPCR to perform any act required by this paragraph shall not impair
the validity of the Covenant or limit its enforceability in any way.
16. Representations of the City. The City states that it has good and lawful right and authority
to subject the Property to this Covenant.
17. Interpretation. This Covenant shall be interpreted under the laws of the State of Colorado,
resolving any ambiguities and questions of the validity of specific provisions so as to preserve the
Conservation Values and give maximum effect to its conservation purposes.
18. Notices. Any notice, demand, request, consent, approval, or communication that either
party desires or is required to give to the other under this Covenant shall be in writing and either
served personally or sent by first class mail, postage prepaid, or by overnight commercial courier,
addressed as follows and shall be deemed given when personally served, on the day after being
sent by courier, or on the third business day after being mailed:
If to the LAPCR: Landowners Assoc. for Phantom Canyon Ranches
Attn: Brian T. Gray, President
1738 Bonny Drive
Loveland, CO 80538
(704) 614-7770
btgray@att.net
With copy to: Registered Agent on File with
Colorado Secretary of State
If to the City: Fort Collins Utilities
Attn: Halligan Water Supply Project Manager
P.O. Box 580
700 Wood St.
Fort Collins, CO 80522
With Copies to: Real Estate Services Manager
City of Fort Collins
Mailing Address: P.O. Box 580
Page 32 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Proiect
Fort Collins, CO 80522-0580
Hand Delivery: 117 North Mason St.
Fort Collins, CO 80524
City Attorney's Office
City of Fort Collins
Mailing Address: P.O. Box 580
Fort Collins, CO 80522-0580
Hand Delivery: 300 LaPorte Avenue
Fort Collins, CO 80521
or to such other address as any party from time to time shall designate by written notice to the
others.
19. General Provisions.
a. Controlling Law. The interpretation and performance of this Covenant shall be
governed by the laws of the State of Colorado.
b. Liberal construction. Any general rule of construction to the contrary
notwithstanding, this Covenant shall be liberally construed in favor of the grant to affect
the purpose of the Covenant. If any provision in this Covenant is found to be ambiguous,
an interpretation consistent with the purposes of the Covenant that would render the
provision valid shall be favored over any interpretation that would render it invalid.
C. Severability. If any provision of this Covenant or application thereof to any person
or circumstance is found to be invalid, the remainder of the provisions of this Covenant, 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 Covenant sets forth the entire agreement of the parties with
respect to the matters described herein, and supersedes all prior discussions, negotiations,
understandings, or agreements relating to the Covenant, all of which are merged herein.
C. No Forfeiture. Nothing contained herein shall result in a forfeiture of LAPCR's fee
title to the Property.
f. Joint Obligation. In the event that there is more than one owner of the Property at
any time, the obligations imposed by this Covenant upon LAPCR shall be joint and several
upon each of the owners of the Property.
g. Successors; Third Party Beneficiaries. The covenants, terms, conditions, and
restrictions of this Covenant shall be binding upon, and inure to the benefit of, the parties
hereto and their respective heirs, beneficiaries, trustees, successors, and assigns and shall
continue as a servitude running in perpetuity with the Property. It is expressly understood
and agreed that the enforcement of the terms and conditions of this Covenant and all rights
Page 33 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Protect
of action relating to such enforcement, shall be strictly reserved to the parties and that
nothing contained in this Covenant shall give or allow any claim or right of action
whatsoever by any other third person. It is the express intention of the parties that any
person or entity, other than the parties, receiving services or benefits under this Covenant
shall be deemed an incidental beneficiary only.
h. Termination of Rights and Obligations. A parry's rights and obligations under this
Covenant terminate upon transfer of the parry's interest in the Covenant or the Property,
except for any unpaid financial obligations of one party to the other which were owed prior
to the date of such transfer under this Covenant.
i. 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.
j. Amendment. If the circumstances arise under which an amendment to or
modification of this Covenant would be appropriate, LAPCR and the City are free to jointly
amend this Covenant. Any amendment must be consistent with the conservation purposes
of this Covenant. Any amendment must be in writing, signed by the duly authorized
officials of each affected party, and recorded in the records of the Clerk and Recorder of
Larimer County.
k. Change of Conditions. A change in the potential economic value of any use that is
prohibited by or inconsistent with this Covenant, or a change in any current or future uses
of neighboring properties, shall not by itself constitute a change in conditions that makes
it impossible or impractical for continued use of the Property for conservation purposes
and shall not constitute grounds for terminating the Covenant.
1. Obligations Subject to Appropriation. The City's obligations under this Covenant
for subsequent fiscal years are subject to the annual appropriation by the City Council of
the City of Fort Collins, in its sole discretion, of funds sufficient and intended for such
purposes.
in. Good Faith Negotiation/Mediation. Where this Covenant specifies that a decision
requires the mutual agreement of the parties, the parties shall be obligated to make best
efforts to negotiate in good faith to reach mutual agreement consistent with the
Conservation Values and purposes of the Covenant. In the event that such efforts by the
parties fail to result in mutual agreement through negotiation, the parties agree to attempt
to resolve their dispute through mediation. Either parry may commence the mediation
process by providing the other parry with written notice setting forth the subject of the
dispute, and the solution requested. Within ten (10) days after the receipt of the notice, the
other party shall deliver a written response to the initiating party's notice. The parties agree
to meet with a mutually acceptable mediator to attempt to resolve the dispute. The initial
mediation session shall be held within thirty (30) days after the initial notice, unless the
selected mediator cannot accommodate the parties within that time. If the parties cannot
agree upon a mediator, the City will provide LAPCR with a list of at least three professional
Page 34 of 35
EXHIBIT A
Exhibit D-1 to Agreement Regarding the Halligan Water Supply Proiect
mediation organizations in the Fort Collins/Denver area that are not affiliated with the City
of Fort Collins. LAPCR will select an organization from the list within ten (10) days of
receipt of the list, and the selected organization will be asked to choose a mediator for the
parties. The parties agree to share equally the costs and expenses of the mediation, which
shall not include the expenses incurred by each parry for its own legal representation in
connection with the mediation. The provisions of this subparagraph may be enforced by
any court of competent jurisdiction, and the party seeking enforcement shall be entitled to
an award of all costs, fees and expenses, including reasonable attorneys' fees and other
legal costs, to be paid by the party against whom enforcement is ordered.
TO HAVE AND TO HOLD unto the City and its successors and assigns forever.
[Remainder of Page Intentionally Blank]
Page 35 of 35
EXHIBIT A
Exhibit D-2 to Agreement Regarding the Halligan Water Supply Project
EASEMENT DEED
WITH TERMS AND CONDITIONS
(Access for LAPCR to North Fork of the Cache la Poudre River South of Halligan Dam)
THIS EASEMENT DEED WITH TERMS AND CONDITIONS ("Easement Deed") is
made and entered into this day of , 20_ (the "Effective Date"), by and
between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation ("City"),
and THE LANDOWNERS' ASSOCIATION FOR PHANTOM CANYON RANCHES, a
Colorado nonprofit corporation ("LAPCR").
1. City's Property. The City is the owner of that certain parcel of real property located in
Larimer County, Colorado, which is legally described on Exhibit A, consisting of [ ] page(s),
attached to and made apart of this Easement Deed ("City Property"). The City Property is adjacent
to Halligan Reservoir. In this Easement Deed, "Halligan Reservoir" refers to that reservoir as
enlarged..'
2. LAPCR's PropertX. LAPCR is the owner of that certain parcel of real property located in
Larimer County, Colorado, which is legally described on Exhibit 13, consisting of [ ] page(s),
attached to and made a part of this Easement Deed ("LAPCR Property").
3. Grant of Easement. The City hereby grants to LAPCR, its members and guests, and
LAPCR's successors in ownership of the LAPCR Property, a perpetual access easement on, over,
and across the North Fork of the Cache la Poudre River (the "North Fork"), including its bed and
fifty (50) horizontal feet from the high water line along each of its banks (the "Easement") where
the North Fork runs over and across the City Property, immediately south of the Halligan Reservoir
dam in Section 34, all in Township 11 North, Range 71 West of the 6th P.M. as described more
fully on Exhibit C, consisting of page(s), attached to and made a part of this Easement
Deed (the "Easement Area"), for the benefit of LAPCR Property, subject to the conditions and
restrictions set forth below. It is the express intent of the Parties that Easement Area shall be as
defined herein, with the recognition that: (1) the Easement Area's specific width will fluctuate as
the waters of the North Fork rise and fall, with the Parties' intent being that the TAE Area's specific
width at any given time be the sum of fifty (50) horizontal feet on one bank plus the actual width
of the North Fork between its high water lines plus (50) horizontal feet on the other bank; and (2) the
Easement Area's specific location on the Property will move with the North Fork as it moves due
to erosion, deposition, and other forces, with the Parties' intent being that the Easement Area's
specific location move with the actual location of the North Fork, provided, however, that the
Easement Area not extend farther up or downstream.
4. Purpose of Easement. The Easement shall be limited to foot traffic for recreational
purposes, for example: hiking, fishing, and bird watching. No hunting is allowed on the City
Property. Vehicular access and motorized access of any kind without the City's prior consent are
prohibited.
1 Halligan Reservoir is generally located in portions of Sections 27, 28, 29, 32, 33, and 34, Township 11 North,
Range 71 West of the 6th P.M. The Reservoir Dam is generally located in the NE1/4 of the SW1/4 of Section 34,
Township 11 North, Range 71 West of the 6' P.M.
Page 1 of 13
EXHIBIT A
Exhibit D-2 to Agreement Regarding the Halligan Water Supply Protect
5. Halligan Reservoir. Use of the City Property by LAPCR shall not interfere with use of the
City Property by the City in connection with the maintenance, operation, and repair of Halligan
Reservoir and related infrastructure by the City including construction -related activities and non -
construction -related activities, including: repair, maintenance, inspections, or other necessary
work to maintain infrastructure, creation of material stockpiles (such as from dredging and other
work); outlet works/stilling basin work; stream gage -related work; wetland, vegetation, and/or
habitat reestablishment; and fencing off certain sensitive areas from access by the LAPCR in
association with mitigation or other permitting requirements, such as wetland and vegetation
reestablishment areas. Because the Easement Area is close in proximity to the Halligan Reservoir
dam, where maintenance, repair, replacement, and operation activities will occur, access under this
Easement will be limited within feet south of the Halligan Reservoir dam, as
depicted/described more fully on Exhibit D (the "Maintenance and Operations Zone"). The City
shall be entitled to temporarily prohibit LAPCR from using all or part of the Easement Area to the
extent reasonably necessary when the City is performing maintenance, repair, replacement,
equipment testing or inspections, or operations work associated with Halligan Reservoir and the
Halligan Reservoir dam and associated infrastructure that is inconsistent with LAPCR's use of the
Easement. The City will provide notice to LAPCR of any such temporary prohibitions as soon as
practicable.
6. City's Retention and Reservation of Rights. The City expressly retains and reserves any
and all rights to the City Property that are not expressly granted to LAPCR in this Easement Deed,
including any and all rights associated with any construction, maintenance, and operation of
Halligan Reservoir and the Halligan Reservoir dam, and rights to use the City Property for any
purpose that will not violate LAPCR's full enjoyment of the rights granted herein. The City shall
be entitled to fence livestock or pedestrian traffic out of wetlands areas or any other areas under
restoration. The City agrees that it will not use the Easement Area for recreation or recreational
access and will not grant easements, licenses, or other rights to the Easement Area to any third
parties for the purposes described in Paragraph 4, without the prior written consent of the LAPCR.
LAPCR's rights to access the Easement Area under the Easement are exclusive only in the sense
that the City shall not use the subject land for recreation or recreational access and shall not grant
recreational rights or recreational access to others on the same land. The City shall otherwise
retain the right to access and use the Easement Area for any purpose that does not violate the
Association's rights under the Easement.
7. LAPCR Obligations regarding the City Property.
(a) All activities by LAPCR on the Easement Area shall minimize disturbance to the
natural features of said lands and the City's intended purposes therefor, in particular
the City's construction and maintenance activities within the Maintenance and
Operations Zone.
(b) LAPCR shall install no improvements, make no excavations, and make no
modifications whatsoever to or on the Easement Area.
Page 2 of 13
EXHIBIT A
Exhibit D-2 to Agreement Regarding the Halligan Water Supply Protect
(c) In the event that damage occurs from LAPCR's use of or activities over or within
the Easement Area, within thirty (30) days or, if such work cannot be reasonably
completed in thirty (30) days, as soon as practicable thereafter, LAPCR shall make
such repairs or take such other actions as may be necessary to restore the Easement
Area to a condition comparable to their condition prior to LAPCR's activities on
the Easement Area, including but not limited to the reseeding and replanting of any
disturbed areas in a manner reasonably satisfactory to the City, and the provision
of ongoing maintenance of any seeded or planted areas, correction of any
subsidence, and restoration of any other conditions impacted by LAPCR's
activities, until such time as any such repair and restoration is fully established and
stabilized. Provided, however, that if damage to the Easement Area occurs as a
result of third parties not associated with LAPCR using the Easement Area in
violation of this Easement Deed, then LAPCR shall not be responsible in that event
for making such repairs to the Easement Area.
8. Representations of the City. The City warrants and represents that is it the lawful owner
in fee simple of the City Property, which includes the Easement Area, and that it has good and
lawful right and authority to subject the City Property to this Easement Deed.
9. Recordation. The City will record this Easement Deed in the records of the Larimer County
Clerk and Recorder promptly after it is executed, at its sole cost and expense. This Easement Deed
will not be valid until it is recorded.
10. Indemnity and Insurance.
(a) LAPCR releases and indemnifies the City, its officers, agents, employees,
representatives, successors and assigns from and against all claims and liability,
including but not limited to the City's reasonable legal fees and costs, including
attorneys' fees, for claims for personal injury, death or property damage resulting
from or arising out of LAPCR's use of the Easement Area or other activities on the
City's Property, including but not limited to the construction, installation,
operation, repair, and maintenance of improvements within the City's Property, and
for any actions or omissions by LAPCR in violation of this Easement Deed.
(b) LAPCR shall maintain at its sole cost, a comprehensive policy of general liability
insurance in an amount not less than One Million Dollars ($1,000,000.00) covering
bodily injury, including death to persons, personal injury, and property damage
liability arising out of a single occurrence in connection with its use of the Easement
Area under this Easement. Such coverage must include, without limitation, liability
for property damage, bodily injuries, and death of persons in connection with the
operation, maintenance, or use of the Easement Area.
11. Notices. Any notice or other communication relating to this Easement Deed must be in
writing and shall be deemed given (i) when delivered personally, or (ii) on the first business day
which is three (3) days following mailing by certified mail, return receipt requested and postage
Page 3 of 13
EXHIBIT A
Exhibit D-2 to Agreement Regarding the Halligan Water Supply Proiect
prepaid, or (iii) the next business day after sending by a nationally recognized overnight delivery
service, and addressed to the party at its respective address as follows:
If to LAPCR:
Registered Agent on File with the Colorado Secretary of State
If to the City:
Real Estate Services Manager
City of Fort Collins
Mailing Address:
P.O. Box 580
Fort Collins, CO 80522-0580
Hand Delivery:
117 North Mason St.
Fort Collins, CO 80524
With a copy to:
City Attorney's Office
City of Fort Collins
Mailing Address:
P.O. Box 580
Fort Collins, CO 80522-0580
Hand Delivery:
300 LaPorte Avenue
Fort Collins, CO 80521
12. Default and Litigation Expenses. If a parry to this Easement Deed is in default in
performance of its respective obligations hereunder, the other party has the right to an action for
specific performance or damages or both. Prior to proceeding with any such action, the parry not
in default must first send written notice to the defaulting party specifying the default and affording
such party a reasonable period, but in no event longer than forty-five (45) days, to cure the default.
In the event a party defaults in any of its covenants or obligations and the party not in default
commences and substantially prevails in any legal or equitable action against the defaulting party,
the defaulting party expressly agrees to pay all reasonable expenses of the litigation, including a
reasonable sum for attorneys' fees or similar costs of legal representation.
14. Additional Terms and Conditions.
(a) Whenever used herein, the singular number includes the plural, the plural the
singular; and the use of any gender is applicable to all genders.
(b) All of the covenants herein contained are binding upon and inure to the benefit of
the parties hereto, their personal representatives, successors and permitted assigns.
(c) The parties intend and agree that this Easement Deed is to be construed and
enforced according to the laws of Colorado, that venue in any proceeding related
Page 4 of 13
EXHIBIT A
Exhibit D-2 to Agreement Regarding the Halligan Water Supply Protect
to the subject matter of this Easement Deed will be in Larimer County, Colorado,
and that this Easement Deed is binding upon the parties hereto and their trustees,
heirs, personal representatives, successors and assigns.
(d) If any term of this Easement Deed is determined by any court to be unenforceable,
the other terms of this Easement Deed 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 Easement
Deed as may be necessary to restore the parties as closely as possible to the initially
agreed upon relative rights and obligations.
IN WITNESS WHEREOF, the LAPCR, has hereunder set its hand and seal the day and year
first above written; and the City has caused this Easement Deed to be executed by its Mayor,
attested to by its City Clerk, and its corporate seal to be hereunto affixed, all pursuant to
Ordinance No. , passed on final reading by the City Council of the City of Fort
Collins on the day of , 20_, and pursuant to the Agreement Between the City
of Fort Collins and the Landowners' Association for Phantom Canyon Ranches Regarding the
Halligan Water Supply Project, dated
Page 5 of 13
EXHIBIT A
Exhibit D-2 to Agreement Regarding the Halligan Water Supply Proiect
THE CITY OF FORT COLLINS, COLORADO
a Municipal Corporation
Date: By:
Mayor
ATTEST:
City Clerk
(Printed name)
APPROVED AS TO FORM:
Eric Potyondy, Assistant City Attorney
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of
2020, by as Mayor of the City of Fort
Collins.
Witness my hand and official seal.
My Commission expires:
Notary Public
Page 6 of 13
EXHIBIT A
Exhibit D-2 to Agreement Regarding the Halligan Water Supply Proiect
GRANTEE:
Landowners' Association for Phantom Canyon
Ranches, a Colorado nonprofit corporation
Date: Bv:
Brian T. Gray, President
STATE OF COLORADO )
ss
COUNTY OF
The foregoing instrument was acknowledged before me this day of ,
, by Brian T. Gray as President for the Landowners' Association for Phantom Canyon
Ranches.
Witness my hand and official seal.
My Commission expires:
Notary Public
Page 7 of 13
EXHIBIT A
Exhibit D-2 to Agreement Regarding the Halligan Water Supply Protect
EXHIBIT A
Legal Description of the City's Property
TOWNSHIP 11 NORTH, RANGE 71 WEST OF THE GTH P. M.
Section 32: The N1/2 of the NEI/4;
Section 33: The N1/2; the N1/2 of the SE1/4 and the N1/2 of
the SW1/4;
Section 34, The N1/2 of the NE1/4; the SWI/4 of the NE1/4;
the NW1/4 of SE1/4 and the SW1/4;
EXCEPTING from all of the above that portion lying above the
110 foot contour of Halligan Reservoir as conveyed by Deed
recorded January 9, 1913 in Book 242 at Page 355
County of Larimer, State of Colorado.
Page 8 of 13
EXHIBIT A
Exhibit D-2 to Agreement Regarding the Halligan Water Supply Project
EXHIBIT B
Legal Description of the LAPCR's Property
*Placeholder until surveyed legal description and depiction are completed pursuant to the
Agreement Between the City of Fort Collins and the Landowners' Association for Phantom
Canyon Ranches Regarding the Halligan Water Supply Project *
Page 9 of 13
EXHIBIT A
Exhibit D-2 to Agreement Regarding the Halligan Water Supply Project
EXHIBIT C
Legal Description and Depiction of the Easement Area
*Placeholder until surveyed legal description and depiction are completed pursuant to the
Agreement Between the City of Fort Collins and the Landowners' Association for Phantom
Canyon Ranches Regarding the Halligan Water Supply Project *
Page 10 of 13
EXHIBIT A
Exhibit D-2 to Agreement Regarding the Halligan Water Supply Project
a
0
Page 11 of 13
d
I
EXHIBIT A
Exhibit D-2 to Agreement Regarding the Halligan Water Supply Proiect
Page 12 of 13
EXHIBIT A
Exhibit D-2 to Agreement Regarding the Halligan Water Supply Project
EXHIBIT D
Description of the Maintenance and Operations Zone
*Placeholder until location is identified and a surveyed legal description and depiction are
completed pursuant to the Agreement Between the City of Fort Collins and the Landowners'
Association for Phantom Canyon Ranches Regarding the Halligan Water Supply Project *
Page 13 of 13
EXHIBIT A
Exhibit D-3 to Agreement Regarding the Halligan Water Supply Protect
EASEMENT DEED
WITH TERMS AND CONDITIONS
(Access for LAPCR to Southern Shoreline of Halligan Reservoir)
THIS EASEMENT DEED WITH TERMS AND CONDITIONS ("Easement Deed") is
made and entered into this [ ] day of [ ], 20_ (the "Effective Date"), by and between
THE CITY OF FORT COLLINS, COLORADO, a municipal corporation ("City"), and THE
LANDOWNERS' ASSOCIATION FOR PHANTOM CANYON RANCHES, a Colorado
nonprofit corporation ("LAPCR").
1. City Property. The City is the owner of that certain parcel of real property located in
Larimer County, Colorado, which is legally described on Exhibit A, consisting of [ ] page(s),
attached to and made a part of this Deed ("City Property"). The City Property is adjacent to
Halligan Reservoir. In this Easement Deed, "Halligan Reservoir" refers to that reservoir as
enlarged..'
2. LAPCR Property. LAPCR is the owner of that certain parcel of real property located in
Larimer County, Colorado, which is legally described on Exhibit B, consisting of [] page(s),
attached to and made a part of this Easement Deed ("LAPCR Property").
3. Grant of Easement. The City hereby grants to LAPCR, its members and their guests, and
LAPCR's successors in ownership of the LAPCR Property, a perpetual access easement (the
"Easement") on, over, and across the City Property, which is a strip of land along the south shore
of Halligan Reservoir in Section 33 and the southwest quarter of Section 34 all in Township 11
North, Range 71 West of the 6th P.M. as described more fully on Exhibit C, consisting of
() page(s), attached to and made a part of this Easement Deed (the `Basement Area"), for the
benefit of LAPCR Property, subject to the conditions and restrictions set forth below. As described
in Exhibit C, the Easement Area is generally bounded by the following (moving in a clockwise
direction): (a) the west side of Halligan Reservoir dam; (b) the 110 foot contour line of Halligan
Reservoir, which is above both the historical approximately 70 foot contour line of Halligan
Reservoir and the approximately 95 foot contour line of the City's currently planned enlargement
of Halligan Reservoir as part of the Halligan Water Supply Project; (c) the west section line of
Section 33; and (d) the actual water line of Halligan Reservoir, which will vary depending on the
amount of water in storage at any given time. For illustrative purposes only, a map depicting the
approximate location of the Easement Area is included in Exhibit C.
4. Purpose of Easement. LAPCR may use the Easement Area for the following purposes:
livestock grazing (provided that no domesticated sheep or goats shall be allowed on the land);
fishing; non -motorized recreation (e.g., hiking, wildlife viewing). No hunting is allowed on the
Easement Area. Except as expressly authorized herein, vehicular access and motorized access of
any kind without the City's prior consent are prohibited. LAPCR shall be allowed to utilize motor
1 Halligan Reservoir is generally located in portions of Sections 27, 28, 29, 32, 33, and 34, Township 11 North,
Range 71 West of the 6th P.M. The Reservoir Dam is generally located in the NE1/4 of the SW 1/4 of Section 34,
Township 11 North, Range 71 West of the 6t' P.M.
Easement — City Grantor Page 1 of 13
EXHIBIT A
Exhibit D-3 to Agreement Regarding the Halligan Water Supply Proiect
vehicles in the Easement Area for the purposes of: weed management; and accessing a location
from which LAPCR could access the surface of Halligan Reservoir to the extent that LAPCR or
its members acquire rights to access the surface of the reservoir. Nothing in this Easement Deed
shall be construed to grant to LAPCR any rights to access the surface of Halligan Reservoir.
5. Halligan Reservoir. Use of the Easement Area by LAPCR shall not interfere with use of
the City Property by the City in connection with the maintenance, operation, and repair of Halligan
Reservoir and related infrastructure by the City, including construction- and non -construction -
related activities, including: repair, maintenance, inspections, or other necessary work to maintain
infrastructure, creation of material stockpiles (such as from dredging and other work); outlet
works/stilling basin work; stream gage -related work; wetland, vegetation, and/or habitat
reestablishment; and fencing off certain sensitive areas from access by the LAPCR in association
with mitigation or other permitting requirements, such as wetland and vegetation reestablishment
areas. Because the Easement Area is close in proximity to the Halligan Reservoir dam, where
maintenance, repair, replacement, and operation activities will occur, access under this Easement
will be limited to feet west of the dam, as depicted/described more fully on
Exhibit D (the "Maintenance and Operations Zone"). The City shall be entitled to temporarily
prohibit LAPCR from using all or part of the Easement Area to the extent reasonably necessary
when the City is performing maintenance, repair, replacement, or operations work associated with
Halligan Reservoir and the Halligan Reservoir dam and associated infrastructure that is
inconsistent with LAPCR's use of the Easement. The City will provide notice to LAPCR of any
such temporary prohibitions as soon as practicable.
6. City's Retention and Reservation of Rights. The City expressly retains and reserves any
and all rights to the City Property that are not expressly granted to LAPCR in this Easement Deed,
including any and all rights associated with the construction, maintenance, and operation of
Halligan Reservoir, and rights to use the City Property for any purpose that will not violate
LAPCR's full enjoyment of the rights granted herein. The City shall be entitled to fence livestock
(including LAPCR livestock under this Easement Deed) out of wetlands areas or any other areas
under restoration. The City agrees that it will not use the Easement Area for recreation, recreational
access, or livestock grazing and will not grant easements, licenses, or other rights to the Easement
Area to any third parties for the purposes described in Paragraph 4, without the prior written
consent of LAPCR. LAPCR's rights to access the Easement Area under the Easement are
exclusive only in the sense that the City shall not use the subject land for recreation or recreational
access and shall not grant recreational rights or recreational access to others on the same land. The
City shall otherwise retain the right to access and use the Easement Area for any purpose that does
not violate the Association's rights under the Easement.
7. LAPCR Obligations regardingthe City Property.
(a) All activities by LAPCR on the Easement Area shall minimize disturbance to the
natural features of said lands and the City's intended purposes therefor, in particular
the City's construction and maintenance activities within the Maintenance and
Operations Zone.
Easement — City Grantor Page 2 of 13
EXHIBIT A
Exhibit D-3 to Agreement Regarding the Halligan Water Supply Proiect
(b) LAPCR shall install no improvements, make no excavations, and make no
modifications whatsoever to or on the Easement Area.
(c) In the event that damage occurs from LAPCR's use of or activities over or within
the Easement Area, within thirty (30) days or, if such work cannot be reasonably
completed in thirty (30) days, as soon as reasonably practicable thereafter, LAPCR
shall make such repairs or take such other actions as may be necessary to restore
the Easement Area to a condition comparable to their condition prior to LAPCR's
activities on the Easement Area, including but not limited to the reseeding and
replanting of any disturbed areas in a manner reasonably satisfactory to the City,
and the provision of ongoing maintenance of any seeded or planted areas, correction
of any subsidence, and restoration of any other conditions impacted by LAPCR's
activities, until such time as any such repair and restoration is fully established and
stabilized. Provided however, that if damage to the Easement Area occurs as a
result of third parties not associated with LAPCR using the Easement Area in
violation of this Easement Deed, then LAPCR shall not be responsible in that event
for making such repairs to the Easement Area.
8. Representations of the City. The City warrants and represents that is it the lawful owner
in fee simple of the City Property, which includes the Easement Area, and that it has good and
lawful right and authority to subject the City Property to this Easement Deed.
9. Recordation. The City will record this Easement Deed in the records of the Larimer County
Clerk and Recorder promptly after it is executed and its sole cost and expense. This Easement
Deed will not be valid until it is recorded.
10. Indemnity and Insurance.
(a) LAPCR releases and indemnifies the City, its officers, agents, employees,
representatives, successors and assigns from and against all claims and liability,
including but not limited to the City's reasonable legal fees and costs, including
attorneys' fees, for claims for personal injury, death or property damage resulting
from or arising out of LAPCR's use of the Easement Area or other activities on the
City's Property, including but not limited to the construction, installation,
operation, repair, and maintenance of improvements within the City's Property, and
for any actions or omissions by LAPCR in violation of this Easement Deed.
(b) LAPCR shall maintain at its sole cost, a comprehensive policy of general liability
insurance covering the Improvements and insuring the LAPCR in an amount not
less than One Million Dollars ($1,000,000.00) covering bodily injury, including
death to persons, personal injury, and property damage liability arising out of a
single occurrence in connection with its use of the Easement Area. Such coverage
must include, without limitation, liability for property damage, bodily injuries, and
death of persons in connection with the operation, maintenance, or use of the
Easement Area under this Easement.
Easement — City Grantor Page 3 of 13
EXHIBIT A
Exhibit D-3 to Agreement Regarding the Halligan Water Supply Protect
11. Notices. Any notice or other communication relating to this Easement Deed must be in
writing and shall be deemed given (i) when delivered personally, or (ii) on the first business day
which is three (3) days following mailing by certified mail, return receipt requested and postage
prepaid, or (iii) the next business day after sending by a nationally recognized overnight delivery
service, and addressed to the party at its respective address as follows:
If to LAPCR:
Registered Agent on File with the Colorado Secretary of State
If to the City:
Real Estate Services Manager
City of Fort Collins
Mailing Address:
P.O. Box 580
Fort Collins, CO 80522-0580
Hand Delivery:
117 North Mason St.
Fort Collins, CO 80524
With a copy to:
City Attorney's Office
City of Fort Collins
Mailing Address:
P.O. Box 580
Fort Collins, CO 80522-0580
Hand Delivery:
300 LaPorte Avenue
Fort Collins, CO 80521
12. Default and Litigation Expenses. If a party to this Deed is in default in performance of its
respective obligations hereunder, the other parry has the right to an action for specific performance
or damages or both. Prior to proceeding with any such action, the party not in default must first
send written notice to the defaulting party specifying the default and affording such parry a
reasonable period, but in no event longer than forty-five (45) days, to cure the default. In the event
a party defaults in any of its covenants or obligations and the parry not in default commences and
substantially prevails in any legal or equitable action against the defaulting party, the defaulting
party expressly agrees to pay all reasonable expenses of the litigation, including a reasonable sum
for attorneys' fees or similar costs of legal representation.
14. Additional Terms and Conditions.
(a) Whenever used herein, the singular number includes the plural, the plural the
singular; and the use of any gender is applicable to all genders.
(b) All of the covenants herein contained are binding upon and inure to the benefit of
the parties hereto, their personal representatives, successors and permitted assigns.
Easement — City Grantor Page 4 of 13
EXHIBIT A
Exhibit D-3 to Agreement Regarding the Halligan Water Supply Protect
(c) The parties intend and agree that this Easement Deed is to be construed and
enforced according to the laws of Colorado, that venue in any proceeding related
to the subject matter of this Easement Deed will be in Larimer County, Colorado,
and that this Easement Deed is binding upon the parties hereto and their trustees,
heirs, personal representatives, successors and assigns.
(d) If any term of this Easement Deed is determined by any court to be unenforceable,
the other terms of this Easement Deed 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 Easement
Deed as may be necessary to restore the parties as closely as possible to the initially
agreed upon relative rights and obligations.
IN WITNESS WHEREOF, the LAPCR has hereunder set its hand and seal the day and year
first above written; and the City has caused this Easement Deed and Agreement to be executed
by its Mayor, attested to by its City Clerk, and its corporate seal to be hereunto affixed, all
pursuant to Ordinance No. , passed on final reading by the City Council of the
City of Fort Collins on the day of , 20_, and pursuant to the Agreement
Between the City of Fort Collins and the Landowners' Association for Phantom Canyon Ranches
Regarding the Halligan Water Supply Project, dated
Easement — City Grantor Page 5 of 13
EXHIBIT A
Exhibit D-3 to Agreement Regarding the Halligan Water Supply Project
THE CITY OF FORT COLLINS, COLORADO
a Municipal Corporation
Date: By:
Mayor
ATTEST:
City Clerk
(Printed name)
APPROVED AS TO FORM:
Eric Potyondy, Assistant City Attorney
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of
2020, by as Mayor of the City of Fort
Collins.
Witness my hand and official seal.
My Commission expires:
Notary Public
Easement — City Grantor Page 6 of 13
EXHIBIT A
Exhibit D-3 to Agreement Regarding the Halligan Water Supply Project
Date:
GRANTEE:
Landowners' Association for Phantom Canyon
Ranches, a Colorado nonprofit corporation
Brian T. Gray, President
STATE OF COLORADO )
) ss
COUNTY OF )
The foregoing instrument was acknowledged before me this day of ,
, by Brian T. Gray as President for the Landowners' Association for Phantom Canyon
Ranches.
Witness my hand and official seal.
My Commission expires:
Notary Public
Easement — City Grantor Page 7 of 13
EXHIBIT A
Exhibit D-3 to Agreement Regarding the Halligan Water Supply Protect
EXHIBIT A
Legal Description of the City's Property
TbWNSBIP 11 NORTH, RANGE 71 WEST 4F THE 5TH P. M.
Section 32: The N1/2 of the NE1/4;
Section 33: The N1/2; the N1/2 of the SE1/4 and the N112 of
the SW1/4;
Section 34: The N1/2 of the NE1/4; the SWI/4 of the NE1/4;
the NW1/4 of SE1/4 and the SW1/4;
EXCEPTING from all of the above that portion lying above the
110 foot contour of Hallivan Reservoir as conveyed by Deed
recorded January 9, 1913 in Book 242 at Page 355
County of Larimer, State of Colorado.
Easement — City Grantor Page 8 of 13
EXHIBIT A
Exhibit D-3 to Agreement Regarding the Halligan Water Supply Proiect
EXHIBIT B
Legal Description of the LAPCR's Property
*Placeholder until surveyed legal description and depiction are completed pursuant to the
Agreement Between the City of Fort Collins and the Landowners' Association for Phantom
Canyon Ranches Regarding the Halligan Water Supply Project *
Easement — City Grantor Page 9 of 13
EXHIBIT A
Exhibit D-3 to Agreement Regarding the Halligan Water Supply Proiect
EXHIBIT C
Legal Description and Depiction of the Easement Area
*Placeholder until surveyed legal description and depiction are completed pursuant to the
Agreement Between the City of Fort Collins and the Landowners' Association for Phantom
Canyon Ranches Regarding the Halligan Water Supply Project *
Easement — City Grantor Page 10 of 13
EXHIBIT A
Exhibit D-3 to Agreement Regarding the Halligan Water Supply Project
CA n
In
M
il
Easement — City Grantor Page 11 of 13
EXHIBIT A
Exhibit D-3 to Agreement Regarding the Halligan Water Supply Proiect
Easement — City Grantor Page 12 of 13
EXHIBIT A
Exhibit D-3 to Agreement Regarding the Halligan Water Supply Proiect
EXHIBIT D
Description of the Maintenance and Operations Zone
*Placeholder until location is identified and surveyed legal description and depiction are
completed pursuant to the Agreement Between the City of Fort Collins and the Landowners'
Association for Phantom Canyon Ranches Regarding the Halligan Water Supply Project *
Easement — City Grantor Page 13 of 13
EXHIBIT A
Exhibit E to Agreement Regarding the Halligan Water Supply Project
AMENDED AND RESTATED
LEASE AGREEMENT BETWEEN THE CITY OF FORT COLLINS
AND THE PHANTOM CANYON LANDOWNERS ASSOCIATION
FOR HALLIGAN RESERVOIR AND ADJACENT PROPERTY
This Amended and Restated Lease Agreement (this "Lease Agreement") is entered into
this day of , 20_, by and between the following Parties: the City of Fort Collins,
Colorado, a municipal corporation (the "City"), and The Landowners' Association for Phantom
Canyon Ranches, a Colorado nonprofit corporation (the "Association").
RECITALS
A. Halligan Reservoir, also known as North Poudre Reservoir No. 16 (the "Reservoir")
is an on -channel reservoir located on the North Fork of the Cache la Poudre River, in portions of
Section 29, 32, 33, and 34, Township 11 North, Range 71 West of the Oh P.M., Larimer County,
Colorado. The visible portions of the Reservoir's dam and spillway are located in the NE1/4 of
the SW1/4 of Section 34, Township 11 North, Range 71 West of the 61h P.M. (the "Dam and
Spillway").
B. The North Poudre Irrigation Company ("North Poudre") historically owned and
operated the Reservoir and owned the real property described in Recital D (the "Property"). North
Poudre also historically leased recreational rights to the Reservoir and the Property to the
Association and its predecessor.
C. The City acquired various rights to the Reservoir and surrounding lands from North
Poudre pursuant to: the Warranty Deed, dated January 22, 2004, recorded with the Larimer County
Clerk on January 26, 2004 at Reception No. 2004-0007821; and the Bargain and Sale Deed, dated
January 22, 2004, recorded with the Larimer County Clerk on January 26, 2004 at Reception No.
2004-0007822.
D. Pursuant to said Warranty Deed, the City acquired the following lands in Township
11 North, Range 71 West of the 6th P.M.:
Section 32: The N1/2 of the NE1/4;
Section 33: The N1/2; the N1/2 of the SE1/4 and the N1/2 of the
SW1/4;
Section 34: The N1/2 of the NE1/4; the SW1/4 of the NE1/4; the
NW1/4 of the SE1/4 and the SW1/4;
Excepting from all of the above that portion lying above the 110 foot contour of
Halligan Reservoir as conveyed by Deed recorded January 9, 1913 in Book 242 at
Page 355.
E. The Association is an organization, the members of which own an interest in one
or more of the parcels of the Phantom Canyon Ranches (the "Members"). A map of the Phantom
Page 1 of 11
EXHIBIT A
Exhibit E to Agreement Regarding the Halligan Water Supply Project
Canyon Ranches is attached hereto as Exhibit "A" and incorporated herein by reference (the
"Map"). The Map shows the parcels within Phantom Canyon Ranches ("Parcels") and the Roads
that provide access to the Parcels and the Reservoir (the "Roads"). Easements for the Roads were
created by a Declaration of Easements dated December 30, 1988 and recorded January 31, 1989
with the Larimer County Clerk at Reception No. 89004600 (the "Declaration of Easements"). The
Declaration of Easements and the Second Amended and Restated Declaration of Covenants,
Conditions and Restrictions for Phantom Canyon Ranches recorded June 8, 2009 with the Larimer
County Clerk at Reception No. 20090037601 of the Larimer County, Colorado records (the
"Covenants") apply to use of Meadow Creek Road (from Larimer County Road 80C to Halligan
Reservoir, as highlighted in yellow on the Map) and rights granted under this Lease Agreement.
The Association and its Members have historically shown a commitment to the preservation of the
land. For instance, many of the Parcels are subject to conservation easements, and the Association
has historically cared for the Reservoir and preserved and enhanced the habitat of the Property and
the surrounding lands owned by the Association.
F. The City intends to enlarge the Reservoir from its current capacity of approximately
of approximately 6,408 acre feet to, among other things, meet the projected future demand of lands
and persons that receive water service from the City (the "Project"). Presently, the City anticipates
enlarging the Reservoir to approximately 14,525 acre feet. The City has applied to the United
States Army Corps of Engineers for a permit (the "Permit") under Section 404 of the federal Clean
Water Act for the Project (the "Permitting Process").
G. The City desires to lease the Property and Reservoir to the Association, which will
benefit the City (including Fort Collins Utilities) by, among other things, assisting in the
maintenance of the Reservoir and Property, facilitating the Permitting Process, and generating a
revenue stream from the Property and Reservoir.
H. The Association desires to acquire rights to use the Reservoir and Property,
primarily for recreational purposes.
I. The City desires to use Meadow Creek Road to obtain access to Halligan Reservoir
and the Property and the Association is willing to grant to the City the right to use Meadow Creek
Road subject to the terms and conditions of Section 4(c) for this Lease Agreement.
J. The original Lease Agreement is dated March 9, 2017, and was recorded with the
Larimer County Clerk and Recorder on March 23, 2017 at Reception No. 20170019010. The
Parties subsequently agreed to certain amendments to the original Lease Agreement as part of and
set forth in the Agreement Between the City of Fort Collins and The Landowners' Association for
Phantom Canyon Ranches Regarding the Halligan Water Supply Project ("Halligan Project
Agreement"). Pursuant to the term of the Halligan Project Agreement, the Parties are executing
this Amended and Restated Lease Agreement to incorporate those amendments and to replace the
original Lease Agreement in its entirety. No other substantive changes to the original Lease
Agreement are included in this Amended and Restated Lease Agreement.
AGREEMENT AND UNDERSTANDING
Page 2 of 11
EXHIBIT A
Exhibit E to Agreement Regarding the Halligan Water Supply Project
1. INCORPORATION OF RECITALS. The foregoing recitals are hereby
incorporated herein as if fully restated in their entirety.
2. LEASE OF THE PROPERTY AND RESERVOIR. The City hereby grants an
exclusive lease to the Association for the Property and Reservoir, subject to the terms and
conditions of this Lease Agreement including, by example and not limitation, the City's reserved
rights as set forth in Paragraph 4.
TERMS AND CONDITIONS ON USE OF THE PROPERTY AND
RESERVOIR.
a. The Association acknowledges that the Property and Reservoir are being
taken "as is" under this Lease Agreement. The City makes no warranties as to the suitability of
the Property for the Association's intended activities.
b. The Property may be used by the Association, its Members, their guests,
and invitees for recreational purposes, including, by example and not limitation, hunting, hiking,
and horseback riding. In addition, the Association may use the Property for livestock grazing and
related activities.
C. The Reservoir may be used by the Association, its Members, their guests,
and invitees for recreational purposes only, including, by way of example and not limitation,
fishing, boating, canoeing, sailing, and swimming.
d. Use of the Reservoir and the Property by the Association, its Members, their
guests, and invitees shall comply with and shall not be in violation of any applicable laws,
regulations or ordinances of the United States of America, State of Colorado, County of Larimer,
the City, and any other governmental entity having jurisdiction over the Reservoir and/or the
Property including, by example and not limitation, rules and regulations pertaining to hunting,
fishing, boating safety.
The Association shall not install any permanent fixtures or improvements
on the Property.
f. The Dam and Spillway are located near the southeast corner of the
Reservoir in the channel of the North Fork of the Cache la Poudre River. The Association agrees
to act in good faith and use reasonable efforts to prohibit any recreational activity in the immediate
vicinity of the Dam and Spillway. The Association shall adopt rules and regulations and post
appropriate signs and notices prohibiting swimming, boating, sailing, canoeing, fishing, or
conducting any other activity near the Dam and Spillway.
g. To the extent allowed by law, the Association shall have the right, but not
the obligation, to prohibit any and all persons from entering upon the Property and/or Reservoir
for any reason; provided, however that the Association shall not act in any way that inhibits the
City's reserved rights as set forth in Paragraph 4.
Page 3 of l 1
EXHIBIT A
Exhibit E to Agreement Regarding the Halligan Water Supply Project
4. RESERVED RIGHTS OF THE CITY. The City hereby reserves the following
rights to the Property and Reservoir for itself, its employees, agents, and contractors, and persons
and entities working on the Permitting Process or the Project:
a. During the time period after the City has begun construction on the Halligan
Reservoir enlargement and before the City has issued a notice to the Association that the Colorado
Division of Water Resources has accepted construction of the new Reservoir Dam pursuant to its
Rules and Regulations for Dam Safety and Dam Construction, 2 CCR 402-1 (or successor
regulations) and that Phase 2 (Construction) is complete, the City shall be entitled to impose
reasonable limitations on the Association's use of the Property to allow the City to complete
construction and for health and safety reasons.
b. The City shall be entitled to use and operate the Reservoir as a water storage
reservoir including, but not limited to, maintenance, repair, and operation of the Dam and Spillway,
and fluctuation of the water level in the Reservoir. The Parties expressly acknowledge that the
City has retained and may continue to retain North Poudre (and/or another entity) to operate the
Reservoir and associated property pursuant to various service agreements.
C. The City shall be entitled to enter the Property and the Reservoir by roads
other than Meadow Creek Road, Andrews Park Road, Jackson Park Road, or Three Corner Gate
Road for the following purposes:
i. Any and all purposes associated with the Permitting Process and other
processes associated with the enlargement of the Reservoir including, but not limited to,
investigations and studies performed by the City and relevant governmental agencies and their
employees and agents (such as, by way of example and not limitation, the United States Army
Corps of Engineers, Larimer County, Colorado Parks and Wildlife, and the Colorado Water
Conservation Board).
ii. Any and all purposes associated with legal and regulatory compliance
including, but not limited to, dam safety inspections, water quality monitoring and compliance,
and water rights administration.
iii. For site visits for the purposes of providing information to City employees
and officials, governmental representatives, and members of the public.
iv. For purposes, of confirming that the Association is complying with the
Lease Agreement's terms.
d. The City shall have the right to use Meadow Creek Road to enter the
Property and the Reservoir pursuant to the following terms and conditions:
i. Use of Meadow Creek Road by the City shall be limited to the
following purposes: for the purpose of conducting studies required for the Permitting Process by
the U.S. Army Corps of Engineers or other federal, state, or local agencies; for maintenance and
safety inspections of the Halligan Dam; for regulatory compliance, and for water quality studies.
Page 4 of l 1
EXHIBIT A
Exhibit E to Agreement Regarding the Halligan Water Supply Project
ii. The City shall notify the Association President and Association's
caretaker prior to each use of Meadow Creek Road. Notification may be given by phone call,
email, or in writing.
iii. Any use of Meadow Creek Road by City for purposes other than
those listed in Section 4(c)(i) shall be allowed at the sole and absolute discretion of the Association.
The City shall provide a request to the Association to use Meadow Creek Road for purposes other
than those listed in Section 4(c)(i) in writing five (5) days in advance of desired date of use of the
Meadow Creek Road.
iv. A City employee shall be present for any use of Meadow Creek
Road by any City agent(s) and contractors, and persons and entities working on the Permitting
Process or the Project.
V. Use of Meadow Creek Road is subject to the Declaration of
Easements, the Covenants, and the Rules and Regulations of the Association.
vi. The City may not make any improvements to Meadow Creek Road
without the prior written consent of the Association, which consent may be granted or withheld in
the sole and absolute discretion of the Association. The City, at its sole cost and expense, shall
repair any damage to the Meadow Creek Road caused by or resulting from use of Meadow Creek
Road by the City, its agents, employees, or contractors. In the event the City fails to repair any
damage done to the Meadow Creek Road, the Association shall give to the City written notice of
the required repairs and if such repairs are not completed by the City within thirty (30) days after
notice of the required repairs is given to the City, the Association shall have the right to perform
such repair work and shall be entitled to reimbursement from the City for all costs and expenses
incurred by the Association in performing such repair work upon demand, together with interest
on such amounts at the rate of 12% per annum from the date incurred by the Association until
repaid by the City.
vii. The City shall be deemed to have accepted Meadow Creek Road in
its present condition, as is, where is, with all faults, patent and latent, without any representations
or warranties whatsoever by the Association, its agents or employees. The City assumes all risks
associated with use of Meadow Creek Road. The City acknowledges that neither the Association
nor any of Association's agents have made any representations or warranties whatsoever regarding
Meadow Creek Road. The City assumes all risk that any adverse matter of whatever kind or nature
including, but not limited to the physical condition of Meadow Creek Road may arise in the future.
The Association shall have no obligation to the City to maintain Meadow Creek Road in its present
condition or to improve Meadow Creek Road for the City's use.
viii. To the extent permitted by law and without waiving its right to
governmental immunity, the City shall be deemed to have released the Association, its officers,
directors, members, agents and employees and their respective heirs, personal representatives,
successors and assigns (the "Released/Indemnified Parties") from and against any and all claims,
demands, actions, suits, and proceedings of whatever kind or nature that the City may now have
or may have at any time in the future arising out of or as a result of the present or any future
Page 5 of 11
EXHIBIT A
Exhibit E to Agreement Regarding the Halligan Water Supply Project
condition of Meadow Creek Road or the use of Meadow Creek Road by the City, its agents or
employees.
ix. To the extent permitted by law and without waiving its right to
governmental immunity, The City shall defend, indemnify and hold harmless the
Released/Indemnified Parties from and against any and all loss, cost, and expense including
attorneys' fees arising out of, as a result of, or in connection with any claim made against the
Released/Indemnified Parties as a result of the use or misuse of the of Meadow Creek Road by the
City, its agents, employees, contractors or any other person or entity using Meadow Creek Road
with the express or implied authorization, permission, or consent of the City. To the extent
permitted by law and without waiving its right to governmental immunity, The City shall also
defend, indemnify and hold harmless the Released/Indemnified Parties and the property upon
which Meadow Creek Road is located from and against any and all loss, cost, and expense
including attorneys' fees arising out of, as a result of, or in connection with any claim made against
the Released/Indemnified Parties as a result of the any work performed on Meadow Creek Road
by the City, its agents, employees, contractors, including but not limited to mechanic's lien claims.
5. TERM. The initial term of this Lease Agreement shall be ten (10) years
commencing on the date at which this Lease Agreement is fully executed (the "Initial Term"). So
long as the Association is current and not in default in the performance of any of the Association's
obligations under this Lease Agreement (or has cured any default as of the time notice is given),
the Association shall have the right to extend the term of this Lease Agreement for two (2)
additional periods of ten (10) years each upon the same terms and conditions as contained in this
Lease Agreement ("Extension Term[s]"). If the Association elects to exercise the Association's
option to extend the term of this Lease Agreement for one or more Extension Terms, the
Association shall do so by giving the City written notice of such extension not less than sixty (60)
days prior to the expiration of the Initial Term of this Lease Agreement or prior to the expiration
of the previous Extension Term. If the Association gives such notice, the term of this Lease
Agreement shall be automatically extended for the additional period of each Extension Term
without the necessity of executing any extension or renewal agreement. Notwithstanding the
foregoing, this Lease Agreement may be terminated pursuant to Paragraph 6.
6. TERMINATION. The City shall have the right to terminate this Lease Agreement
any time after any of the following conditions have occurred:
a. The City has issued a notice to the Association that the Colorado Division
of Water Resources has accepted construction of the new Reservoir Dam pursuant to its Rules and
Regulations for Dam Safety and Dam Construction, 2 CCR 402-1 (or successor regulations) and
that Phase 2 (Construction) is complete; or
b. The City determines, in its sole discretion, to no longer pursue the
enlargement of the Reservoir and abandons the Permitting Process and re -conveys the Property
and the Reservoir to North Poudre.
Notice of Termination shall be given pursuant to Paragraph 17. Any notice of termination
shall provide the Association with a date by which the Association shall cease to have rights to the
Page 6 of l 1
EXHIBIT A
Exhibit E to Agreement Regarding the Halligan Water Supply Project
Property and Reservoir under this Lease Agreement, provided that said date is at least sixty-three
(63) days after the date of the notice ("Termination Date"). The City shall be entitled to record a
notice of the termination in the Larimer County property records.
Upon termination of this Lease Agreement, the City shall reimburse to the Association a
prorated portion of the annual rental payment paid in the year in which termination occurs for that
portion of the year when the Lease Agreement is no longer in effect. Reimbursement shall be
calculated by dividing the number of calendar days between the date of termination and the date
the current lease year was to conclude by 365 multiplied by the annual rent as set forth in Section 8.
7. REVOCABLE PERMIT. Upon the execution of this Lease Agreement by the
Parties, the "Revocable Permit for the Landowners' Association for Phantom Canyon Ranches on
Certain City Lands in and Around Halligan Reservoir" dated June 1, 2016 ("Revocable Permit"),
shall be deemed revoked and terminated and both Parties shall be released from their respective
obligations thereunder.
8. Rent. Full compensation to the City for the lease for the Property and Reservoir
having been made pursuant to the Agreement Between the City of Fort Collins and the
Landowners' Association for Phantom Canyon Ranches Regarding the Halligan Water Supply
Project; no additional compensation to the City is required for the Initial Term or any Extension
Term of this Lease Agreement.
9. INSURANCE. The Association must procure, pay for, and keep in full force and
effect during the term of this Lease Agreement a comprehensive policy of general liability
insurance insuring the Association in an amount not less than $1,000,000 covering bodily injury,
including death to persons, personal injury, and property damage liability arising out of a single
occurrence. Such coverage must include, without limitation, the insured's liability for property
damage, bodily injuries, and death of persons in connection with the Association's activities on
the Property and Reservoir (including acts or omissions of the Association or of its officers,
employees, or agents), and protection against liability for non -owned and hired automobiles. All
policies of insurance required hereunder must name the City as an additional insured, and shall
contain a provision that the policy or policies cannot be canceled or materially altered either by
the insured or the insurance company until fifteen (15) days' prior written notice thereof is given
to the City. Upon issuance or renewal of any such insurance policy, the Association shall furnish
a certified copy or duplicate original of such policy or renewal thereof with proof of premium
payment to the City. In the event the Association fails or neglects to maintain the insurance
required by this paragraph, the City shall have the right, upon giving the Association reasonable
notice of its election to do so, to take out and maintain such insurance at the expense of the
Association, and in such event the cost of such insurance shall be paid for by the Association
promptly upon receipt of an invoice covering such charges.
10. INDEMNITY. The Association agrees to indemnify and hold harmless the City,
its officers, agents, employees, representatives, successors and assigns from all claims and liability,
including the City's reasonable attorneys' fees and costs, for claims resulting from or arising out
of the Association's use of the Property and Reservoir, and for any actions or omissions by the
Association in violation of this Lease Agreement or in violation of any applicable law or
regulation.
Page 7 of 11
EXHIBIT A
Exhibit E to Agreement Regarding the Halligan Water Supply Project
11. RECORDING. The Association shall record this Lease Agreement in the Larimer
County property records and shall provide the City with a copy of this Lease Agreement, as
recorded, as soon as practicable.
12. REMEDIES. If either Party fails to comply with the provisions of this Lease
Agreement, the other Party, after providing written notification to the noncomplying Party, and
upon the failure of the noncomplying Party to achieve compliance within thirty-five (35) days, may
seek all such remedies available under Colorado law.
13. FISCAL CONTINGENCY. Notwithstanding any other provision of this Lease
Agreement to the contrary, the obligations of the City in fiscal years after the fiscal year of this
Lease Agreement shall be subject to appropriation of funds sufficient and intended therefor, with
the City having the sole discretion to determine whether the subject funds are sufficient and
intended for use under this Lease Agreement, and the failure of the City to appropriate such funds
shall be grounds for termination of this Lease Agreement upon ninety one (91) days prior written
notice of the failure to appropriate such funds.
14. NO THIRD -PARTY BENEFICIARIES. This Lease Agreement is entered into
between the Parties for the purposes set forth herein. It is the intent of the parties that they are the
only beneficiaries of this Lease Agreement and the Parties are only benefitted to the extent
provided under the express terms and conditions of this Lease Agreement.
15. GOVERNING LAW AND ENFORCEABILITY. This Lease Agreement shall
be construed in accordance with the laws of the State of Colorado, insofar as any matter is not
regulated by applicable laws of the United States. The Parties recognize that the constitutions,
statutes, and rules and regulations of the State of Colorado and of the United States, as well as the
Parties' respective bylaws, city charters and codes, and rules and regulations, impose certain legal
constraints on each Party and that the Parties intend to carry out the terms and conditions of this
Agreement subject to those constraints. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner so as to be effective and valid under applicable law.
16. WAIVER. A waiver of a breach of any of the provisions of this Lease Agreement
shall not constitute a waiver of any subsequent breach of the same or another provision of this
Lease Agreement.
17. NOTICES. All notices or other communications required or desired to be given
by one Party to the other Party under this Lease Agreement shall be sufficiently given and shall be
deemed given when personally delivered, or after the lapse of five (5) business days following
mailing by certified mail -return receipt requested, postage prepaid, addressed as follows:
To the City: City Manager
City Hall West
300 LaPorte Avenue; P.O. Box 580
Fort Collins, Colorado 80522-0580
Page 8 of l 1
EXHIBIT A
Exhibit E to Agreement Regarding the Halligan Water Supply Project
With copy to: Fort Collins City Attorney's Office
and:
Fort Collins Utilities
Attn: Water Resources Manager
700 Wood Street P.O. Box 580
Fort Collins, Colorado 80522-0580
To the Association: Registered agent on file with the
Colorado Secretary of State
18. CONSTRUCTION. This Lease Agreement shall be construed according to its fair
meaning as it was prepared by both Parties.
19. ENTIRE AGREEMENT. This Lease Agreement constitutes the entire agreement
of the Parties regarding the matters addressed herein. This Lease Agreement binds and benefits
the Parties and their respective successors. Covenants or representations not contained in this
Lease Agreement regarding the matters addressed herein shall not bind the Parties.
20. CAPTIONS. The captions of the paragraphs of this Lease Agreement are for
convenience only and shall not govern or influence the interpretation of the Lease Agreement
21. REPRESENTATIONS. Each Party represents to the other Party that it has the
power and authority to enter into this Lease Agreement and the individual signing below on behalf
of that Party has the authority to execute this Lease Agreement on its behalf and legally bind that
Parry.
[Remainder of Page Left Blank Intentionally]
Page 9 of l 1
EXHIBIT A
Exhibit E to Agreement Regarding the Halligan Water Supply Project
CITY OF FORT COLLINS, COLORADO, a home -rule city
Kelly DiMartino, Interim City Manager
ATTEST:
By:
City Clerk
Name:
Title:
APPROVED AS TO LEGAL FORM:
an
Eric R. Potyondy, Assistant City Attorney
Page 10 of I 1
Date:
EXHIBIT A
Exhibit E to Agreement Regarding the Halligan Water Supply Project
STATE OF COLORADO
) ss.
COUNTY OF LARIMER
THE LANDOWNERS' ASSOCIATION FOR
PHANTOM CANYON RANCHES, a Colorado
nonprofit corporation
M.
Brian Gray, President
The foregoing instrument was acknowledged before me this day of , 20 , by
Brian Gray, as President of The Landowners' Association for Phantom Canyon Ranches, a
Colorado nonprofit corporation.
Witness my hand and official seal
My commission expires:
Notary Public
Page 11 of 11