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HomeMy WebLinkAbout076 - 06/21/2016 - AUTHORIZING THE CONVEYANCE OF AN ACCESS EASEMENT ON TOPMINNOW NATURAL AREA TO JEROME B. AND DARLA J.ORDINANCE NO. 076, 2016 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE CONVEYANCE OF AN ACCESS EASEMENT ON TOPMINNOW NATURAL AREA TO JEROME B. AND DARLA J. ROSELLE IN EXCHANGE FOR THE VACATION OF AN EXISTING ACCESS EASEMENT WHEREAS, the City is the owner of a parcel of property in Larimer County, Colorado known as Topminnow Natural Area, and more particularly described as Lot 2, Amended Plat of Roselle-Shields Minor Land Division No. 99-S 1466 (the "City Property"); and WHEREAS, Jerome B. and Darla J. Roselle (the "Roselles") own a parcel of land adjacent to and south of the City Property, described as Lot 1, Amended Plat of Roselle-Shields Minor Land Division No. 99-S 1466 (the "Roselle Property"); and WHEREAS, the Roselles have agreed to sell to the City a portion of the Roselle Property totaling approximately five acres (the "Purchase Parcel") that, through another amendment to the plat of the Roselle-Shields Minor Land Division, would become part of the City Property; and WHEREAS, the City Property and the Purchase Parcel are both bounded on the west by the Fossil Creek Inlet Ditch (the "Ditch"), which is owned, maintained and operated by North Poudre Irrigation Company ("NPIC") within non-exclusive easements that NPIC acquired from predecessors in interest of the City and the Roselles (the "Ditch Easements"); and WHEREAS, the Roselle Property is bisected by the Ditch, and the Roselles currently have access to the portion of their property that is on the east side of the Ditch via an existing thirty-foot wide easement on the east side of the City Property (the "Existing Easement"); and WHEREAS, the Roselles wish to retain access to the portion of their property that is on the east side of the Ditch, and Natural Areas staff would prefer that such access be along the existing NPIC ditch road (the "Ditch Road") so that the Roselles' existing access easement could be vacated; and WHEREAS, Natural Areas would like an easement across the remaining portion of the Roselle Property that is on the east side of the Ditch as an alternative access route to the City Property; and WHEREAS, the City, the Roselles and NPIC have negotiated a reciprocal access easement agreement whereby, upon closing on the Purchase Parcel, the City would grant the Roselles an access easement over that portion of the Ditch Road that is,located on the City Property and the Purchase Parcel, and the Roselles would grant the City an access easement over the portion of the Ditch Road that is located on the remaining Roselle Property; and WHEREAS, the new easement would take the place of the Existing Easement, which the Roselles would terminate; and 1- WHEREAS, the location of the proposed shared access easement is indicated on Exhibit A", attached and incorporated herein by this reference (the "Access Easement"); and WHEREAS, NPIC has consented to the conveyance of the Access Easement and the parties' use of the Ditch Road so long as it does not interfere with NPIC's use of the Ditch Easements or Ditch Road; and WHEREAS, as additional consideration for NPIC's consent to this use of the Ditch Road the City is agreeing to assume responsibility for weed control within the portion of the Access Easement located on the City Property; and WHEREAS, a draft of the proposed Reciprocal Access Easement Deed and Agreement is attached and incorporated herein as Exhibit"B" (the "Easement Agreement"); and WHEREAS; because the Access Easement will replace the Existing Easement the Roselles own on the City Property, the.Access Easement is within the existing Ditch Easements and will use existing improvements, and in consideration of the mutual purpose and benefit of the Access Easement, City staff is recommending that the City not charge the Roselles any additional consideration for the Access Easement; and WHEREAS, at its regular meeting on September 9, 2015, the Land Conservation and Stewardship Board voted to recommend approval of the conveyance of the Access Easement; and WHEREAS, Section 23-111(a) of.the City Code authorizes the City Council to sell, convey or otherwise dispose of any interest in real property owned by the City, provided that the City Council first finds, by ordinance, that such sale or other disposition is in the best interests of the City. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby makes and adopts the determinations and findings contained in the recitals set forth above. Section 2. That the City Council hereby finds that the City's conveyance, of the Access Easement to the Roselles as provided herein is in the best interests of the City. . Section 3. That the Mayor is hereby authorized to execute the Easement Agreement in substantially the form' attached as Exhibit `B", in exchange for vacation of the Existing Easement and otherwise consistent with the terms of this Ordinance, together with such additional terms and conditions as the City Manager, in consultation with the City Attorney, determines are necessary or appropriate to protect the interests of the City, including, but not limited to, any necessary changes to the legal description of the Access Easement provided that such changes do not materially increase the size or change the character of the interests to be conveyed. 1 2_ Introduced, considered favorably on first reading, and ordered published this 7th day of June, A.D. 2016, and to be presented for final passage on the 21 st day of June, A.D. 2016. OF aoR r co liljJ MayojOro Tem. ATTEST: SEAL N cOGORAOO City Clerk Passed and adopted on final reading on the 21st day of June, A.D. 2016. o¢fORrco S L N ayor ATTEST: cOCORA O vV vll City Clerk 3- EXHIBIT A 7)^'/• ran v_I>+nft fu HORLt%WIXROAD- wW ww u an Yr. 5e9 '1J"E te]S89' I u A gyp\ Existing 30' wide access easement 7 PFA 1 ID Mmirl• ` ` ` y r 11 I m.e'w v mn.a 1 c1 F1 c turf i bAmes Proposed shared 1 access easement b T. tZI I Y n K Ap IL J I e 11• 1 w u i 9 \4 \ \\ I 1 a \ \ \ Yf 1 1 I rota I Yu• `\` `\> m I L y aIyi\ 3J• 9 A Ne9'N G]•f J33.SJ y\4 1 y g 3l, I N k \ NB9YJ'0e•W 6N.31Y Q , Farr wWawePJura•rmr> E rmnJ Jvmfmr I 16 1 I\ rosa Tnw[.. 7wiw,PnlYnwf,ro a'iOV YWr Mf 1 C C E 1 ' ebb I leee a X t n7 r i3$9 2o • O a 0 0 v it yid S Il il ea•ig D AMENDED.PLAT OF THE E'0M3 KING SURVEYORS iwNaeadeePlotofMeResells-Sf11tlEa ua.o.raw va-sae 650 E.Garden Drive I Windsor,Colorado 80550 3 Q q 9 INn1XST LIXIMTMG GRWP phone:(970)GBG-5011 I email:info©ICing$usveyofs.com EXHIBIT B DRAFT 6-7-16 RECIPROCAL ACCESS EASEMENT DEED AND AGREEMENT THIS RECIPROCAL ACCESS EASEMENT DEED AND AGREEMENT Agreement") is made and entered into this day of 2016 (the Effective Date"), by and between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation, ("City"), whose address is P.O. Box 580, Fort Collins, Colorado 80522, JEROME B. ROSELLE AND DARLA J. ROSELLE (the "Roselles") whose address is 3314 Grand Canyon Court, Fort Collins, CO 80525 and the NORTH POUDRE IRRIGATION COMPANY ("NPIC"), whose address is 3729 Cleveland Ave, Wellington,.CO 80549 1. City's Property. 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 one (1) page,. attached to and made a part of this Agreement("City Property"). 2. Roselles' Property. The Roselles are the owners of that certain parcel of real property located in Larimer County, Colorado, which is legally described on Exhibit B, consisting of one. 1)page, attached to and made a part of this Agreement("Roselles'.Property"). 3. NPIC's Property. NP1C is the owner of that certain ditch known as the Fossil Creek Inlet Ditch, (the "Ditch") depicted on Exhibit C. The Ditch runs along the western boundary of the City property and bisects the Roselles' Property. NPIC is also the owner of two non-exclusive easements appurtenant to the Ditch, one recorded at Book 166, Page 342 dated March 29, 1902; and one recorded at Reception Number 20070056665 .dated May 23, 2007, both of which are recorded in the records of the Larimer County Clerk and Recorder's Office. ("NPIC Easements") Said easements owned by NPIC are for the use, operation, maintenance and various other related purposes attendant to the operation of the Ditch and also provide access to the Ditch for said purposes along an existing two-track road referred to as the Fossil Creek Inlet Ditch road (the Ditch Road"). The Ditch Road is currently used and maintained by NPIC for access to the Ditch for the purpose of operating, repairing and maintaining the Ditch. Such use includes, but is not limited to, mowing, removal of obstructions, cleaning the Ditch and Ditch banks, grading, and maintaining road base, and construction, operation and maintenance of ditch structures and facilities. NPIC's use of the NPIC Easements and Ditch Road shall not be affected, impeded or restricted by this Agreement, and all use of the Easement granted in Paragraph 4 herein between the City and Roselles as set forth in Exhibit "D" is subject to the NPIC Easements and Ditch Road. 4. Grant of Easement — Consideration. For and in consideration of the covenants and agreements herein set forth, the sum of Ten Dollars (S10.00), and other good and valuable consideration, the receipt and adequacy of which the parties acknowledge, the.City and Roselles each hereby grant, sell and convey to each other and their respective successors, heirs and assigns, and NPIC hereby consents to the use of, a 20-foot-wide perpetual, non-exclusive shared access easement (the "Easement") on, over, under and across their respective Properties in the locations shown and described more fully on Exhibit D, consisting of two (2) pages, attached to and made a part of this Agreement (the "Easement Area"), subject to the conditions and restrictions set forth below. 1 DRAFT 6-7-16 5. Purpose and Uses of Easement. a) The parties acknowledge that the Easement overlies the Ditch Road, which has been in place for many decades. The City and Roselles may use the Easement solely for occasional vehicular access to maintain and inspect their respective undeveloped properties, on, over, and across the Easement Area, in a manner so as not to interfere with NPIC's use of the NPIC Easements and Ditch Road. The Easement may not be used for public access or recreational purposes. Use of the Easement shall be restricted to the parties hereto, their employees, agents, representatives, successors and assigns. b) City and Roselles agree not to install any structures, fences, gates, or improvements, or plant or place trees, shrubs, or landscaping within or over the Easement Area. c) The City and the Roselles acknowledge that NPIC's use, operation, maintenance and related activities on and within the Easement may inconvenience the Roselles and the City and may temporarily interfere with any rights they otherwise have to use the Easement. d) The City and the Roselles acknowledge that NPIC's maintenance of the Ditch, the Ditch Road and ancillary elements attendant to each may, at times, temporarily preclude the City's and Roselles' use of the Easement. In the event NPIC plans any routine maintenance activities which it knows in advance will preclude the City's and Roselle's use of the Easement for any period in excess of twenty-four 24) hours, NPIC shall provide the City and Roselles with as much advance notice as practicable under the circumstances. e) The City and Roselles further understand and acknowledge that NPIC's operations, use and maintenance of the Ditch and Ditch Road may cause or result in damage to the Easement and any improvements on the Easement. NPIC shall not be responsible for any damage to improvements, if any, made upon the Easement by City or Roselles. 6. Rights in Easement as between City and Roselles. a) City and Roselles each shall have the right to use the Easement Area for purposes that will not interfere with the other party's full enjoyment of the rights granted herein, including but not limited to each party's right to operate or allow others to operate utility improvements on its own property within the Easement Area. c) City and- Roselles shall not deposit or permit their employees, agents, representatives, successors and assigns to deposit, earth, rubbish, debris, or any 2 DRAFT 6-7-16 other substance or material, whether combustible or noncombustible, on the Easement Area, other than vegetation acceptable to all parties. 7. Obligations Regarding Easement Area as between City and Roselles. a) All activities by the City and Roselles on the Easement Area, including access across the Easement Area, must be carried out in a manner reasonably expected to minimize disturbance to the natural features of each party's respective property, any improvements thereon, and such party's intended purposes therefor. b) The City and Roselles acknowledge that the Easement granted herein pursuant to Paragraph 4, above, is subject to all prior liens, encumbrances, easements, restrictions, reservations and rights of way affecting the City's and Roselle's respective properties. 8. Maintenance a) The City and the Roselles understand that NPIC has no duty or obligation to maintain the Ditch Road but that.NPIC may maintain the Ditch Road at its sole discretion for its own needs and purposes. Although they benefit from NPIC's maintenance of the Ditch Road, the City and Roselles shall have no right to make any claim or demand of or against NPIC regarding maintenance, repairs, upkeep, funding or reimbursement of any type regarding the Ditch Road, except as expressly provided for herein. b) As consideration for NPIC's consent to this Easement, the City agrees to assume responsibility for weed control within the portion of the Easement Area located on the City Property. The City will manage and control weeds in that portion of the Easement Area in the same manner and to the same extent as it does on the City Property, or as otherwise reasonably necessary to permit the City, Roselles and NPIC to access, use, operate and maintain the Ditch Road. c) Should either the Roselles or the City desire to perform any maintenance or repair upon the Ditch Road other than the weed control described in subsection (b) above, they shall have the rights to do so, provided that NPIC first approves the work. NPIC shall be provided written notification of the proposed maintenance or repairs at least fourteen (14) days prior to commencement of any proposed maintenance or repair, including the proposed cost and plan of the proposed maintenance or repair, a time schedule for performance, the name address and phone number for any contractor retained for performance; and the current name, address and phone number of the party proposing the maintenance or repair. Should NPIC fail to respond in writing to the proposal within fourteen (14) days of receipt of the notice, NPIC shall be deemed to have approved the proposed work. The party performing the maintenance or repair work shall provide the other parties a copy of the paid invoice for approved work within thirty (30) days 3 DRAFT 6-7-16 of completion of such maintenance and repair. However, should NPIC object to the proposed work, the Roselles and the City agree to waive all rights to defend against any Temporary Restraining Order, Preliminary Injunction, or other temporary relief that NPIC may seek to enjoin any maintenance, improvements, or time schedule that proceeds without NPIC's approval. d) Except as otherwise provided herein, in the event one party's use of or activities over or within the Easement Area, causes damage to another.party's property or the Easement Area, the responsible party shall make such repairs or take such other action as may be necessary to restore the Easement Area or other property to a condition comparable to its prior condition, including but not limited to the reseeding and replanting of any disturbed areas in a manner reasonably satisfactory to the other party, and shall provide ongoing maintenance of any seeded or planted areas, correction of any subsidence, and restoration of any other affected improvements or conditions until such time as any such repair and restoration is fully established and stabilized. Neither NPIC nor the Roselles shall undertake any repair or restoration work on the City Property without the City's, prior review and approval of the plans for such work. Should City fail to respond to a request for approval of such plans within fourteen (14) days of submittal, City shall be deemed to have approved the plans e) The City and the Roselles agree to retain the existing gate along Horsetooth Road and the existing fence that runs along the eastern bank of the Ditch Road. NPIC is responsible for the maintenance of said fence and gate, will allow the City and Roselles access through the gate, and will allow the City to add a,lock to the gate. 9. Representations of the Parties. I The City and Roselles each represent to the other that they are the lawful owners in fee simple of their respective properties, and that each has good and lawful right and authority to grant, sell and convey its portion of the Easement Area to the other party. 10. Recordation. The City will record this Agreement in the records of the Larimer County Clerk and Recorder and furnish evidence of such recording to the Roselles and NPIC. This Agreement will not be valid until it is recorded. 11. Liability. a) By virtue of entering into this Agreement, NPIC assumes no liability for use, operation, or existence of the Roselles' and City's future or additional activities in the Easement Area. b) Each party is responsible for its own negligence and that of its officers, agents, employees, guests, invitees, licensees, tenants, and representatives in its use of the Easement Area or other activities on the other party's property, including but not limited to the construction, installation, operation, repair, and maintenance of improvements within the Easement Area, and for any actions or omissions in 4 DRAFT 6-7-16 violation of this Agreement. 'The City does not assume any responsibility or liability for the actions of Roselles, and Roselles do not assume any responsibility or liability for the actions of the City. c) The Roselles agree to release and indemnify the City and NPIC from any claims, demands, damages or causes of action the Roselles, their agents, employees, guests, invitees, licensees, tenants, or representatives, may have for injury or damage to persons or property arising out of their (or their agents', employees', guests', invitees', licensees', tenants' or representatives') use or occupancy of or activities within the Easement Area pursuant to this Agreement, unless caused by the gross negligence or intentionally wrongful acts of any other party. d) The City shall provide NPIC with a certificate of general liability insurance naming NPIC as an additional insured for claims, demands, damages or causes of action arising out of the City's use or occupancy of or activities within the Easement Area pursuant to this Agreement, unless caused by the gross negligence or intentionally wrongful acts of any other party. e) To the extent provided for by law, should City's or Roselle's use of the Easement Area impede or interrupt NPIC's water supply or delivery in the Ditch for any reason, the party causing such interruption shall be liable to pay to NPIC as liquidated damages Ten Thousand Dollars ($10,000.00) per day for any day that NPIC has a request for water and cannot deliver water as a result of such party's activity within or.use of the Easement Area. 12. Notices. Any notice or other communication relating to this Agreement must be given by one party to the other at its respective address or facsimile number as set forth below by facsimile, hand delivery, commercial carrier; or,U.S. mail. The notice or other communication will be effective on the date it is delivered or on the third business day after being sent, whichever comes first. If to the Roselles: If to City: 3314 Grand Canyon Ct. Real Estate Services Manager Fort Collins, CO 80525 City of Fort Collins Fax: Mailing Address: P.O. Box 580 If to NPIC:Fort Collins, CO 80522-0580 North Poudre Irrigation Company Hand Delivery: Attn: Scott Hummer 117 North Mason St. Mailing Address: Fort Collins, CO 80524 P.O. Box 100 Fax: Wellington, CO 80549 Hand Delivery: With a copy to: 3729 Cleveland Ave City Attorney's Office Wellington, CO 80549 City of Fort Collins Fax: (970) 221-4569 5 DRAFT 6-7-16 Mailing Address: With a copy to: P.O. Box 580 Chrysten Hinze, Esq. Fort Collins, CO 80522-0580 c/o Lind, Ottenhoff& Root, LLP Hand Delivery: 355 Eastman Park Dr. #200 300 LaPorte Avenue Windsor, CO 80550 Fort Collins, CO 80521 Fax: (970) 675-9535 Fax: 13. Default and Litigation Expenses. If a party to this Agreement 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. In the event a party defaults in any of its covenants or obligations and the party not in default commences and 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. Assignment. The Easement shall be appurtenant to and run with the City Property and- the Roselle Property. Neither the City nor Roselles may assign their rights in this Easement to a third party without the prior consent of the other parties to this Agreement, which shall not be unreasonably delayed or withheld. 15. Obligations Subject to Appropriation. Obligations of the City under this Agreement to be performed in subsequent fiscal years are subject to the annual appropriation of funds sufficient and intended for such purpose by the Fort Collins City Council in its sole discretion. 16. Additional Terms and Conditions. a) The parties acknowledge that the circumstances underlying this Agreement are unique, and neither this Agreement nor its underlying negotiations shall be deemed a precedent for any future expansion of this Agreement or other property owners encumbered by an easement owned by NPIC. b) Whenever used herein, the singular number includes the plural, the plural the singular; and the use of any gender is applicable to all genders. c) All of the covenants herein contained are binding upon and inure to the benefit of the parties hereto, their-personal representatives, successors and assigns. d) The parties intend and agree that this Agreement is to be construed and enforced according to the laws of Colorado, that venue in any' proceeding related to the subject matter of this Agreement will be in Larimer County, Colorado, and that this Agreement is binding upon,the parties hereto, their trustees, heirs, personal representatives, successors and assigns. 6 DRAFT 6-7-16 e) The waiver by any party to this Agreement of a breach or any term or provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach or claim by any party. f) This Agreement may be executed separately by each Party and counterparts or copies, and when each Party has executed a copy thereof, such copies taken together shall be deemed to the full and complete contract between the Parties. g) All exhibits referred to in this Agreement are, by reference, incorporated in this Agreement for all purposes. h) This Agreement and the Exhibits hereto constitute the final and complete expression of the Parties' agreements with respect to this Agreement. Each Party agrees that it has not relied upon or regarded as binding any prior agreements, negotiations, representations or understandings, whether oral or written, except as expressly set forth herein. This Agreement and the Exhibits hereto shall not be modified except by written agreement of the parties. i) If any clause or provision of this Agreement shall be held invalid or unenforceable, the remainder of this Agreement shall not be affected thereby. IN WITNESS WHEREOF, the Roselles and NPIC have hereunder set their hands and seals 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. xxxxxx, 2016, passed on final reading by the City Council of the City of Fort Collins on the xxxxx day of xxxxxxxxxx, 2016. i DRAFT 6-7-16 CITY: THE CITY OF FORT COLLINS, COLORADO.. a Municipal Corporation Date: By: Wade O. Troxell, Mayor ATTEST: City Clerk APPROVED AS TO FORM: Assistant City Attorney . STATE OF COLORADO ) ss COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this day of 2016, by Wade O. Troxell as Mayor and as City Clerk of the City of Fort Collins. Witness my hand and official seal. My Commission expires: Notary Public 8 DRAFT 6-7-16 THE ROSELLES: Date: By: Jerome B: Roselle Date: By: Darla J. Roselle STATE OF COLORADO ) ss COUNTY OF The foregoing instrument was acknowledged before me this day of 2016, by Jerome B. Roselle and Darla J. Roselle. Witness my hand and official seal. My Commission expires: Notary Public 9 DRAFT 6-7-16 NPIC: North Poudre Irrigation Company, Date: By: Name: Scott Hummer Title: General Manager STATE OF COLORADO ) ss COUNTY OF The foregoing instrument was acknowledged before me this day of 2016, by Scott Hummer as General Manager for the North Poudre Irrigation Company. Witness my hand and official seal. My Commission expires: Notary Public 10 1 DRAFT 6-7-16 EXHIBIT A Description of City Property Parcel Numbers: Legal Description: 11 DRAFT 6-7-16 EXHIBIT B Description of the Roselles' Property i Parcel Number: Legal Description: 12 DRAFT 6-7-16 EXHIBIT C Depiction of the Fossil Creek Inlet Ditch 13 DRAFT 6-7-16 EXHIBIT D The Easement Area 14