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HomeMy WebLinkAbout1997-102-07/15/1997-CONSENTING TO THE AMENDED INDENTURE OF TRUST OF THE POUDRE RIVER TRUST RESOLUTION 97-102 OF THE COUNCIL OF THE CITY OF FORT COLLINS CONSENTING TO THE AMENDED INDENTURE OF TRUST OF THE POUDRE RIVER TRUST WHEREAS, the Poudre River Trust was formed in 1984 by a group of interested citizens seeking to promote revitalization along the Cache la Poudre River in Fort Collins, with special emphasis on the downtown core area; and WHEREAS,the Trust Indenture identified the City as an interested party, and required City approval of certain Trust actions, such as the appointment of Trustees and the amendment of the Trust Indenture; and WHEREAS,the original Trustor for the Trust is no longer able to serve in an active way in the Trust organization; and WHEREAS, as a result of such changes in circumstances and personnel involved in the Trust, the Board of Trustees has adopted an Amended Indenture of Trust, which eliminates the requirement of City consent for Trustee appointments and Trust Indenture revisions, and changes the procedures for distribution of assets upon termination of the Trust to reflect current state law in that regard; and WHEREAS, the Amended Indenture of Trust further provides for the appointment of honorary, non-voting Trustees; and WHEREAS, City staff believes that the management and administrative functions of the Trust can most efficiently and effectively be carried out with the adoption of the Amended Indenture of Trust; and WHEREAS, City staff further believes that the active, cooperative relationship that has existed between the City and the Trust since its inception will continue to provide mutual benefits to the City and the Trust. NOW,THEREFORE,BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS,that the City of Fort Collins hereby consents to the Amended Indenture of Trust of the Poudre River Trust,which is on file and available for public review in the office of the City Clerk, and which is hereby incorporated by this reference. Passed and adopted at a regular meeting of the City Coun ' eld s 15th da my A.D. 1997. Mayor ATTEST: . � City Clerk POUDRE RIVER TRUST This Amended and Restated Indenture of Trust is made and entered into on this //"'I day of A5'cM6fx- , 1996, to be effective as of the 19th day of January, 1984, by and between Eugene E. Mitchell as the successor and surviving Trustor, hereinafter sometimes referred to as Trustor; and Ken Ashley, Brian Bourdages, Libby James, Jeff Lakey, Greg Lindsay, Jenny McGraw, David Sitzman, Robert Steiner and Brian Werner, the current Trustees of the Trust herein so designated. The original Trustor has consented to and joined in this Amendment and Restatement . WITNESSETH: ARTICLE 1 . ESTABLISHMENT OF TRUST. This agreement establishes a trust to be known as the Poudre River Trust . The Trust shall be administered by the Trustees in accordance with the provisions of the Indenture and shall have the purposes and powers set forth. ARTICLE 2 . PREAMBLE . 2 . 1 The Cache La Poudre River passes through the City of Fort Collins, Colorado. One reach of the river abuts the historic downtown core area of the City and marks the northern boundary of the core area as currently perceived. The river and the lands along the river represent a significant natural resource which should be developed in a manner which will enhance the development and redevelopment of the core area. Also, the river has great potential value as an amenity, and this asset has not been utilized to its potential . The area surrounding the river is still largely undeveloped. 2 . 2 The City of Fort Collins, Colorado, has developed a plan through its Planning Department known as the Poudre Area River Concept (PARC) . PARC contains concepts and recommendations for public and private development of the river and the area along the river which would enhance the area and utilize the potential of the river as an amenity to such development . The trail system has been partially implemented. Other development concepts remain to be given expression. Proper development of the river area would also make more attractive and enhance the primary points of entry to the core area of the City. 2 . 3 The original Trustor has sponsored studies of the river area and has developed preliminary plans for the development of this area in ways which are compatible with PARC. The Trustor 1 and the Trustees have also provided additional services by professionals which will lead toward more detailed plans for the development of the Poudre River area. 2 .4 Development of the area around the river will require cooperation and interaction between private owners and developers and public entities . Much of the area is in the flood plain of the river. The City of Fort Collins and other public entities own or control a significant portion of the land in the vicinity of the river. In order to expedite this public/private development, it is desirable to establish an organization which can interact with both the public sector and private developers and owners . The Poudre River Trust is established to fulfill that role . 2 . 5 In establishing this Trust it is the intent of the Trustor that the Trust provide the following services : (i) work with the City, private developers and builders, business organizations, citizen committees and other organizations in order to receive the maximum possible community input; (ii) establish the Poudre River area as a greenbelt region while at the same time enhancing the opportunity for social, cultural, recreational and commercial uses in the area; (iii) recommend and work toward any administrative or legislative changes necessary for proper and beneficial development and use of the Poudre River area; (iv) promote and support public, private and joint developments consistent with the plans and objectives of the Poudre River Area Concept; (v) develop public areas and compatible private uses along the banks of the Cache La Poudre River, facilitating and assuring public pedestrian access to the river front; and (vi) any other services which will promote the development of this area in a manner which will utilize the full potential of the river for the benefit of the area and all of the citizens of the City of Fort Collins . ARTICLE 3 . PURPOSE. This Trust is formed exclusively for charitable, literary, scientific and educational purposes within the meaning of Section 501 (c) (3) of the Internal Revenue Code of 1954 as amended ( "the Code" ) . Specific benefits include : 3 . 1 To enhance the Cache La Poudre River as a primary and significant natural resource of the City of Fort Collins for the benefit of its citizens . 3 . 2 To encourage suitable development along and in relation to the Poudre River (particularly near the downtown core area of the City of Fort Collins) which will enhance the value of the river as a natural amenity, the quality and nature of the City' s growth and the attractiveness of the primary points of entry to the City of Fort Collins . 2 3 . 3 To optimize the recreational use and aesthetic value of the parks and trails system of the City of Fort Collins as they currently exist in the area of the Cache La Poudre River. 3 .4 To relate to and enhance access of residents of the City of Fort Collins to the amenities and resources represented by the Cache La Poudre River as it passes through the City of Fort Collins . 3 . 5 To assist in redirecting the City' s development along and in the area of the Cache La Poudre River in the City of Fort Collins with specific reference to the historic downtown core area of the City of Fort Collins . ARTICLE 4 . POWERS . The Trustees shall have the following powers to be exercised in their fiduciary capacity in the administration of the Trust : 4 . 1 To acquire and own real and personal property. 4 . 2 To develop property or assist in the development of property whether owned by the Trust or others . 4 . 3 To enter into agreements with others including, but not limited to, private individuals, private profit making corporations, non-profit corporations, municipal and quasi municipal corporations, the State of Colorado and its agencies and instrumentalities, the United States of America and its agencies and instrumentalities and any other person, corporation, or organization. 4 .4 To borrow money and in connection therewith to mortgage or otherwise encumber property owned by the Trust . 4 . 5 To exchange property and to donate property to the City of Fort Collins or any other entity for purposes consistent with the objectives of the Trust . 4 . 6 To receive grants of money or other property from any person or entity, whether public or private, including the City of Fort Collins, the State of Colorado, the United States of America or any agencies, instrumentalities or subdivisions thereof, to the extent such grants are available and permitted under applicable law. 4 . 7 To conduct business of any kind and nature consistent with and pursuant to the objectives of the Trust, and to enact such Bylaws as they deem useful and appropriate. 3 4 . 8 To do and perform any other act or thing which the Trustees deem necessary or desirable to accomplish the objectives of the Trust . 4 . 9 All other powers set forth in the Colorado Fiduciaries Powers Act as that act exists on this date . ARTICLE 5 . TRUST PROPERTY. 5 . 1 Studies relating to the Cache La Poudre River and the lands abutting the river have been conducted under the sponsorship of the Trustor, and the Trustor now holds plans, maps and other documents relating to those studies . The Trustor has transferred, assigned and conveyed to the Trust all of such property. 5 . 2 The Trustor has further transferred unto the Trust the sum of $1, 000 . 00 and provided additional funding for the Trust by donating $1, 000 . 00 in 1985 and $1, 000 . 00 in 1986 . 5 . 3 The Trust may receive gifts, donations and grants from any other individual or entity. All of such property and all additions thereto and the income therefrom and the product thereof shall constitute the corpus of this Trust . ARTICLE 6 . RESTRICTIONS ON USE OF THE TRUST CORPUS. The Trust corpus shall be devoted exclusively to the purposes of the Trust and in no event shall the same be given or contributed or inure to the benefit of any private person or corporation. Trust corpus may be donated to the City of Fort Collins or other nonprofit entity if the Trustees determine that it is necessary or desirable in order to accomplish the purposes of the Trust, and if the donee accepts this donation and any conditions or restrictions made by the Trustees in connection therewith. ARTICLE 7 . SERVICE OF TRUSTEES. The Trustees shall serve without compensation, but shall be entitled to reimbursement from the Trust income or principal for expenses reasonably incurred in the administration of the Trust . The Trustees shall be chargeable only with exercise of good faith in carrying out the provisions of this Trust and shall not, in the absence of bad faith, be responsible or accountable for errors in judgment . 4 • ARTICLE 8 . TRUSTEES' REPORTS . The Trustees shall make periodic reports no less frequently than annually to the Council of the City of Fort Collins . Such report shall include a financial accounting and shall set forth the activities of the Trust and such other information as the Trustees may deem appropriate . ARTICLE 9 . MAJORITY VOTE. The act of a majority of the Trustees on all matters pertaining to this Trust shall be conclusive. ARTICLE 10 . TERMS OF TRUSTEES--APPOINTMENT. 10 . 1 Trustees shall serve for a term of three (3) years or until their successors are duly appointed as provided herein. The Trustees above named have terms of office which expire on the dates hereinafter set forth: NAME: LENGTH OF TERM: EXPIRATION DATE: Ken Ashley yrs. /2•;/• 'S Brian Bourdages 17 Libby James " /z 3/ 9b Jeff Lakey 15 Greg Lindsay /z,;/ • 17 Jenny McGraw n /z-3/ 1G David Sitzman /2•i/ 9p Robert Steiner /x -;/ • 97 Brian Werner /z. 3/ • fp Subsequent appointments shall be made in such a way as to continue the staggered terms of the Trustees . 10 . 2 Successor Trustees shall be appointed by majority vote of the Trustees in office at the time such appointment is made. In making appointments of Successor Trustees, the Trustees shall endeavor to appoint individuals whose interests and abilities are consistent with the purposes of the Trust . In the event of a vacancy occurring because of death or resignation of a Trustee, the Trustees may fill such vacancy by appointment and, in any event and at all times, until a successor is appointed to fill such vacancy, the remaining Trustees shall have full power to act as if they comprised the full board. ARTICLE 11 . TRUSTEES-MISCELLANEOUS PROVISIONS. 11 . 1 This Trust shall be administered by the Trustees in accordance with its terms, free of judicial intervention and without order, approval, or other action by any court . 5 11 . 2 The Trustees shall not be required to give bond. 11 . 3 No contract or other transaction between the Trust and any person or other entity shall be in any way affected or invalidated solely by reason of the fact that a Trustee of the Trust is pecuniarily or otherwise interested in or holds a position with such other entity, nor shall any such contract or other transaction be in any way affected or invalidated solely by reason of the fact that a Trustee individually or through another entity in which he is interested may be a party to or may be interested in the contract or other transaction with the Trust . A Trustee who is so interested in a contract or other transaction shall disclose such interest to the other Trustees and shall not be entitled to vote on the matter on which he is interested. 11 .4 The Trustees shall prepare, execute and file with the County Clerk and Recorder of Larimer County, Colorado, an Affidavit conforming to the requirements of C.P.S . , 1973 , 538-30- 166, as amended. Whenever a Trustee is replaced by a successor trustee, an Affidavit reflecting the appointment of the new Trustee may be recorded, but such recording is not mandatory. 11 . 5 In connection with any matter involving the operation of the Trust and the performance of the duties of the Trustees hereunder, the City of Fort Collins shall be an interested party and shall have the power to institute actions in law or equity to enforce the terms of this Trust and the obligations and duties of the Trustees hereunder. ARTICLE 11A. HONORARY TRUSTEES . 11A. 1 The Trustees may, by majority vote, appoint Honorary Trustees of the Poudre River Trust . 11A.2 Honorary Trustees shall have the right to participate in all meetings of the Board of Trustees but shall not have a vote. 11A. 3 Honorary Trustees shall be appointed for an indefinite term with their office to be terminable at the will of a majority of the Trustees . 11A.4 It is the intent of the Trustor that Honorary Trustees be selected and appointed based on their knowledge and expertise in matters of concern to the Trust and their interest in the objectives of the Trust . ARTICLE 12 . EMPLOYEES . The Trustees may employ an executive director and such other employees as they deem necessary or desirable to carry out the powers and accomplish the purposes of the Trust . The Trustees 6 may also establish offices such as chairman, vice-chairman, secretary and treasurer and may fill offices by appointment of Trustees or others to such positions. ARTICLE 13 . TERM OF TRUST. The term of this Trust shall be perpetual provided that a majority of the Trustees may, at any time, elect to dissolve the Trust . Upon dissolution of the Trust, the assets of the Trust shall be disposed of according to the procedure outlined in the Colorado Non-Profit Corporation Act . After the liabilities of the Trust have been discharged or provided for, the Trust' s remaining assets shall be disposed of by a distribution to an organization or organizations then qualified as exempt from taxation under section 501 (c) (3) of the Code or its successor provision, or to the Federal government, or to a state or local government, or a public purpose, as determined by the then acting Board of Trustees . If such determination cannot be made for any reason, such determination shall be made by the Court of Common Pleas of the county in which the principal office of the Corporation is then located. ARTICLE 14 . AMENDMENT. This Trust Indenture may be amended by the Trustees . If for any reason the Trustees cease to exist or to perform their powers and duties hereunder, the power to amend or terminate the Trust and all other powers of the Trustees hereunder shall be vested in the City Council of the City of Fort Collins, or such individual or entity as the City Council may appoint to perform all or any of such powers and duties . ARTICLE 15 . SITUS. This Trust Agreement is executed and delivered in the State of Colorado and the situs shall be in that state and it shall be governed by, construed and administered in accordance with the laws of that State . ARTICLE 16 . ACCEPTANCE OF TRUST. The Trustees do hereby accept this Trust and undertake to hold, manage and administer the Trust estate in accordance with the terms of this agreement . 7 IN WITNESS WHEREOF, this agreement has been executed in Fort Collins, Colorado, in behalf of the Trustor and by each of the Trustees named herein. TRUSTEES : S y Al�' G� 2 �— TRUSTOR: The Trustor hereby consents to and joins in this Amendment and Restatement of the Poudre River Trus Eugene 2. Mitchell, individually and f r E, E . Mitchell & Co. Date : CONSENT: The City of Fort Collins hereby consents to the above and foregoing Amendment and Restatement of the Poudre River Trust . CITY OF AR COLLINS barbara\temp\prtrust.doc 8