HomeMy WebLinkAbout1997-010-02/04/1997-IGA LARIMER COUNTY NATURAL AREA PURPOSES ONE HUNDRED SIXTY ACRES PURCHASE MANAGEMENT RESOLUTION 97-10
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT WITH
LARIMER COUNTY FOR THE PURCHASE AND MANAGEMENT OF APPROXIMATELY
ONE-HUNDRED AND SIXTY ACRES OF LAND FOR NATURAL AREA PURPOSES
WHEREAS, Pauline Franz is the owner of approximately 160 acres of land located south of
the Cathy Fromme Prairie and east of the Latimer County Landfill, south of Fort Collins, more
particularly described on Exhibit "A", attached hereto and incorporated herein by this reference and
referred to herein as "the Property"; and
WHEREAS,Pauline Franz has agreed to sell the Property to Latimer County through a series
of four lease/purchase options for a total price of$480,000; and
WHEREAS,City staff has negotiated a proposed Intergovernmental Agreement with Latimer
County, subject to Council approval, whereby the City would: (1) pay $120,000 toward the cost of
acquiring the Property for an undivided 25 percent interest in the Property, and (2) manage the
Property as an addition to the City-owned Cathy Fromme Prairie; and
WHEREAS, one of the objectives of the Natural Areas Policy Plan as adopted by the City
Council is to establish a system of publicly owned natural areas to protect the integrity of critical
conservation sites, protect corridors between natural areas, preserve outstanding examples of Fort
Collins' diverse natural heritage and provide a broad range of opportunities for educational,
interpretive, and recreational programs to meet community needs; and
WHEREAS,the Parks and Recreation Policy Plan, as adopted by the City Council identifies
the property as a priority open land area to be protected; and
WHEREAS, the Plan for the Region Between Fort Collins and Loveland as adopted by the
City Council identifies the Property as a significant natural area to be protected; and
WHEREAS,the purchase of the Property will help the City meet the objectives of the City's
Natural Areas Policy Plan, the Plan for the Region Between Fort Collins and Loveland, and the
Parks and Recreation Policy Plan; and
WHEREAS,in the November 1992 General Election,the citizens of the City of Fort Collins
approved a one-quarter cent sales tax for the acquisition and maintenance of natural areas; and
WHEREAS, sufficient funds are available and appropriated in the Natural Areas Project in
the Capital Projects Fund for the acquisition of the Property, and additional funds are available in
the Capital Projects Fund for maintenance of the Property following acquisition; and
WHEREAS,the Council has determined that the purchase price and donation of the Property
is fair and reasonable and in the best interests of the citizens of the City; and
WHEREAS,the Natural Resources Advisory Board and the Parks and Recreation Board have
recommended to the Council that the acquisition of the Property be completed; and
WHEREAS, Article II, Section 16 of the City Charter provides that the Council may enter
into agreements with other governmental bodies for the performance of cooperative or joint
activities.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
Section 1. That the City Manager be, and hereby is, authorized to enter into an agreement
with Larimer County for the joint acquisition, ownership and management of the Property described
on Exhibit"A", attached hereto and incorporated herein by this reference,which agreement shall be
substantially in the form of the proposed agreement attached hereto as Exhibit`B"and incorporated
herein by this reference (the "Agreement"); provided, however, that the City Manager, in
consultation with the City Attorney, make such additions, deletions, and revisions to the Agreement
as he deems necessary and appropriate to protect the interests of the City.
Section 2. That the Property, while owned by the City, shall be used solely for the
purposes of a public natural area, and that in the event that the City Council subsequently
determines that it is in the best interests of the City to sell or otherwise dispose of all or any portion
of the Property, the proceeds of such sale shall be dedicated to the acquisition or maintenance of
other public natural areas.
Passed and adopted at a regular meeting of the Council of the City of Fort s held this
4th day of February, A.D. 1997.
ayor
ATTEST:
City Clerk
Attachment A
Legal Description of Franz Property
Parcel 1: SW 1/4 of the NW 1/4 of Section 10, Township 6 North , Range 69 West of the 6th
P.M., Larimer County, Colorado.
Parcel 2: SE 1/4 of the NW 1/4 of Section 10, Township 6 North , Range 69 West of the 6th
P.M., Larimer County, Colorado.
Parcel 3: NW 1/4 of the SW 1/4 of Section 10, Township 6 North , Range 69 West of the 6th
P.M., Larimer County, Colorado.
Parcel 4: NE 1/4 of the SW 1/4 of Section 10, Township 6 North, Range 69 West of the 6th
P.M., Larimer County, Colorado.
EXHIBIT B
INTERGOVERNMENTAL AGREEMENT
CONCERNING
FRANZ FARM
This Agreement is made this day of 1997,by and between Larimer
County and the City of Fort Collins, (sometimes hereinafter referred to individually as an "Entity"
and collectively as the "Entities").
WHEREAS,Part 2 of Article 1 of Title 29 authorizes governments to cooperate and contract
with one another to provide any function, service or facility lawfully authorized to each, including
the sharing of costs; and
WHEREAS, Latimer County has imposed a sales tax for the purchase and maintenance of
open space, natural areas, parks and trails and a portion of the funds generated by said sales tax are
distributed to municipalities located within Latimer County; and
WHEREAS, Latimer County and the City of Fort Collins may have other funds available for
the purchase and maintenance of open space, natural areas, parks and trails; and
WHEREAS,Larimer County will be acting as the Lead Entity in negotiating the acquisition,
which may include but is not limited to purchase of a fee interest, purchase of a conservative
easement, purchase of an option or options, a lease or lease/purchase arrangement, of the real
property described as follows:
the NE%4 of the SW'/a together with a non-exclusive easement to
access such property over the easterly thirty (30) feet of the SE%4 of
the NW%4, the SE'/4 of the NW'/4, the SW'/4 of the NW'/4 except the
east sixty (60) feet of the West ninety (90) feet thereof and NW%4 of
the SW%4 except the east sixty (60) feet of the West ninety (90) feet
thereof of, Section 10, Township 6 North, Range 69 West of the 6th
P.M., Latimer County, Colorado,
hereinafter "the Property".
WHEREAS, the Entities desire to cooperate and contract with one another concerning the
sharing of costs and responsibilities for the acquisition, ownership and management of the Property.
NOW,THEREFORE,in consideration of their mutual promises contained herein the Entities
agree as follows:
1
A. Cost Sharing
1. The cost of acquiring the Property is four hundred eighty thousand dollars
($480,000.00), not including adjustments at closings.
2. The Entities agree to contribute the following percentage of the costs to
acquire the Property (including closing costs other direct costs of acquisition, such as title
insurance, survey of the Property, or appraisal fees, and adjustments at closing:
Entity Percentage
Larimer County 75%
(Department of Natural Resources - 50%)
(Sales Tax Revenues - 25%)
City of Fort Collins 25%
100%
3. Larimer County,as the Lead Entity,will notify the City of Fort Collins fifteen
(15) days before a payment is due. An Exhibit "A" is attached setting forth the anticipated
payment due dates, which exhibit is incorporated herein by reference. The City of Fort
Collins will remit said payment to Larimer County by check or certified funds, as instructed
by the Larimer County, so that it is received by Larimer County by the due date stated in the
notice. Any failure on the part of Larimer County to provide the notice referred to above
shall not relieve the City of Fort Collins from its obligations to make payment and if it does
not receive timely notice, it shall remit the required funds within fifteen (15) days of
receiving notice from Larimer County that a payment is due.
B. Ownership of Property
1. Larimer County will acquire title to the Property in its name or in the names
of the parties with the undivided interests set forth in paragraph B.2. below. A copy of the
Option Agreement (including Lease Agreement attached thereto as Exhibit "A") by which
the Property is to be acquired is attached hereto and incorporated herein by reference as
Exhibit "B".
2. Subsequent to closing,the Entities agree that title to the Property shall be held
as follows:
(a) Latimer County: an undivided 75 percent (75%) interest; and
2
(b) City of Fort Collins: an undivided 25 percent(25%) interest.
If title is not shared at closing, the Lead Entity shall quit claim the appropriate percentage
interest in the Property to the other Entity as soon as practicable. The Lead Entity shall
arrange for a title insurance policy to be issued insuring title to the Property in the name of
the ultimate owners as set forth in paragraph B.2.
3. In the event that the Property is sold, exchanged, transferred or otherwise
disposed of, the proceeds from such disposition shall be divided between the Entities in the
same proportion as their actual acquisition contribution.
4. If the Property is acquired in whole or in part with sales tax revenues
generated by the "Help Preserve Open Spaces Initiative", any sale, exchange, transfer or
disposition of the Property shall be subject to all the provisions of the "Help Preserve Open
Spaces Initiative", attached hereto as Exhibit "C", specifically including numbered
paragraphs 20 and 21.
5. If the Property is acquired in whole or in part with sales tax revenues
generated by the City of Fort Collins "A Cent Sales Tax for Natural Areas Initiative," any
sale, exchange, transfer or disposition of the Property shall be subject to all the provisions
of said initiative.
6. If one of the Entities desires to sell the Property and the other Entity does not,
the Entities agree to negotiate in good faith to resolve the issue prior to undertaking any
litigation. In addition, in the event that one of the Entities desires to sell the Property and the
other Entity does not, the Entity desiring to sell hereby grants to the other Entity the option
to purchase the Property at its then fair market value as determined by an appraiser selected
by the Entities.
C. Management of the Property
I. The City of Fort Collins shall be the Managing Entity and shall be responsible
for management of the Property in accordance with the Management Plan developed by the
Entities.
2. On or before March 31, 1998, the Entities shall develop a written plan for the
Property, (the"Management Plan)through the City Manager for the City of Fort Collins and
Director of Parks and Open Lands for Larimer County which Management Plan shall provide
a resource inventory for the Property and establish a common plan to address issues
including,but not limited to: facilities for appropriate public access,weed control, necessary
improvements and restoration needs,and cost sharing for improvements and restoration. The
Management Plan shall also provide a process for modifications by mutual agreement of the
3
entities. If all or any portions of the property are subject to leases or other legal restrictions,
such portions shall be managed in accordance therewith.
3. In the event of emergency or unusual circumstances, the Managing Entity
shall be entitled to use reasonable discretion in responding to such circumstances, regardless
of the expressed terms of the management plan, provided that reasonable efforts are made
to consult with the non-managing entity regarding the proper course of action.
4. The Managing Entity shall be responsible for the management costs
associated with the Property. "Management costs" shall be defined to include normal and
customary expenses associated with day-to-day use and operation of the Property. Cost
sharing for improving the Property for use by the public shall be determined in the
Management Plan,or any other liabilities or extraordinary costs related to the use,possession
or ownership of the Property shall be shared by the Entities in proportion to their ownership
interest in the Property.
D. Miscellaneous Provisions
1. This Agreement may not be assigned by any Entity without the prior written
consent of the other Entities.
2. This Agreement shall be binding upon and inure to the benefit of the Entities'
successors and permitted assigns.
3. Financial obligations of the Entities payable after the current fiscal year are
contingent upon the governing bodies of the Entities appropriating the necessary funds.
4. Any notices required or permitted to be given shall be in writing and
personally delivered to the office of an Entity or by first class mail, postage prepaid, as
follows:
To Larimer County:
K-Lynn Cameron, Open Lands Manager
Latimer County Open Lands and Parks Department
1800 South County Road 31
Loveland, Colorado 80537-9638
4
To City of Fort Collins:
Tom Shoemaker,Natural Resources Director
City of Fort Collins
Department of Natural Resources
281 North College Avenue
Fort Collins, Colorado 80521
Any such notice shall be effective (i) in the case of personal delivery, when the notice is
actually received, or(ii) in the case of first class mail, the third day following deposit in the
United States mail, postage prepaid, addressed as set forth above. Any Entity may change
these persons or addresses by giving notice as required above.
5. This Agreement shall be effective upon the date of the last Entity to sign.
LARIMER COUNTY, COLORADO
Dated: By:
Chair, Board of County Commissioners
ATTEST: APPROVED AS TO FORM:
Deputy Clerk Assistant County Attorney
CITY OF FORT COLLINS, COLORADO
Dated: By:
Mayor
ATTEST: APPROVED AS TO FORM:
City Clerk Assistant City Attorney
5
EXHIBIT "A"
TO
INTERGOVERNMENTAL AGREEMENT CONCERNING FRANZ FARM
BETWEEN LARIMER COUNTY AND THE CITY OF FORT COLLINS
ANTICIPATED APPROXIMATE AMT. APPROXIMATE AMT.
PAYMENT DUE DATE LARIMER COUNTY FORT COLLINS TOTAL
December 19, 1996 $ 90,522.00 $ 30,174.00 $ 120,696.00
December 15, 1998 $ 90,000.00, $ 30,000.00' $ 120,000.00'
December 15, 2000 $ 90,000.00, $ 30,000.00' $ 120,000.00'
December 14, 2002 $ 90,000.00, $ 30,000.00' $ 120,000.00'
TOTAL S360,522.00 $120,174.00 S 480,696.00
Does not include adjustments at closing.
OPTION AGREEMENT
This Option Agreement (the "Agreement" ) is entered into this
1Jjt ) day of December , 1996, by and between Jerome Cornell
as Trustee of the Pauline L. Franz Charitable Remainder Trust
whose address is 405 Gates Street, Post Office Box 161, Elburn,
Illinois 60119 (the "Seller") and the Board of County
Commissioners, Larimer County, Colorado, whose address is 200
West Oak Street, Post Office Box 1190 , Fort Collins, Colorado
80522 (the "Purchaser") .
ARTICLE I — RECITALS
Purchaser desires to acquire an option to purchase and lease
(and ultimately purchase) subject to adequate funds being
budgeted and appropriated certain property owned by Seller. The
property to be purchased is described as the NEB/, of the SW1/, of
Section 10, Township 6 North, Range 69 West of the 6th P .M. ,
Larimer County, Colorado, together with a non-exclusive easement
to access such property over the easterly thirty (30) feet of the
SE1/, of the NWI/, of Section 10, Township 6 North, Range 69 West of
the 6th P .M. , Larimer County, Colorado (the "Purchase Property" ) .
The property to be leased with the intention of purchase is
described as the SE% of the NWI/„ the SW'/, of the NW'/, and the NW1/,
of the SW'/, of Section 10, Township 6 North, Range 69 West of the
6th P.M. , Larimer County, Colorado (the "Lease Property") . The
Purchase Property and the Lease Property are jointly referred to
as the "Property" . Seller is willing to grant Purchaser an
option to purchase the Purchase Property and lease the Lease
Page 1 of 13
EXIITBIT "I"
Property (in accordance with the Lease attached hereto as Exhibit
A) (the "Lease") on the terms and conditions set forth in this
Agreement.
ARTICLE II — AGREEMENT
In consideration of the foregoing recitals and mutual
covenants and agreements contained herein, Seller and Purchaser
hereby agree as follows:
1 . Terms of Option.
1 . 1 Grant. Subject to the terms and conditions of
this Agreement, Seller hereby grants to Purchaser an option
(the "Option") to purchase the Purchase Property and to
lease the Lease Property in accordance with the terms of the
Lease Agreement attached hereto as Exhibit A.
1 . 2 Option Term. The term of this Option shall be
from the date of this Agreement until 5 : 00 p.m. , Fort
Collins, Colorado time on December 20, 1996 .
1 . 3 Method of Exercise . This Option may be exercised
at any time during the term of the option by Purchaser
delivering to J. Bradford March at his address set forth
hereafter, prior to the expiration of the term of the
Option, a statement in writing signed by or on behalf of
Purchaser exercising the Option (the "Notice of Exercise") .
Upon delivery of the Notice of Exercise, this Agreement
shall become an agreement of purchase and sale between
Seller and Purchaser. If J. Bradford March does not receive
Page 2 of 13
Notice of Exercise by the end of the term of the Option
term, this Agreement shall automatically terminate.
1 .4 Option Consideration. Purchaser has paid Four
Thousand Five Hundred and no/100 Dollars ($4, 500 . 00) to
Seller upon execution of this Agreement as consideration for
the grant of the Option, the receipt and adequacy of which
are hereby acknowledged by Seller. The Option consideration
shall not be refundable to Purchaser nor shall it be applied
to the purchase price.
2 . Purchase Property Purchase Price and Adjustments .
2 . 1 Purchase Price. The purchase price for the
Purchase Property (the "Purchase Price") shall be Eighty-
Five Thousand Five Hundred and no/100 Dollars ($85, 500 . 00) .
An initial rental payment of Thirty Thousand and no/100
Dollars ($30, 000 . 00) will be due in accordance with the
terms of the Lease at the same time as the payment of the
Purchase Price. The rent payment will represent a
prepayment of rent in accordance with the terms of the Lease
for a period of approximately two years (the "Rent
Payment") .
2 .2 Payment. The Purchase Price and Rent Payment
shall be payable in cash or certified funds, or by wire
transfer or Larimer County warrant at closing subject to
adjustments .
2 .3 Adjustments and Costs . General real property
taxes on the Property for the year of closing based upon the
Page 3 of 13
most recent assessed valuation and mill levy which can be
obtained through the County Assessor and/or Treasurer shall
be paid by Seller at the time of closing.
3 . Seller' s Obligations. Seller warrants that there are
no leases, tenancies, liens or encumbrances against the Purchase
Property or Lease Property as of the date of the signing of this
Option Agreement except for general real property taxes which
will be satisfied as of the closing date. Seller warrants that
no new liens or encumbrances will be placed on the Property
between the date that this option is executed and the date of
closing as herein defined and the dates of closing set forth in
the Lease for the purchase of the Lease Property. Seller shall
convey the Purchase Property to Purchaser by reasonably
sufficient bargain and sale deed but shall provide no warranties
of title. Seller shall provide Purchaser with no title insurance
or other title assurances but rather it shall be Purchaser' s
obligation to obtain title insurance or other title assurances .
Seller shall cooperate with Purchaser and provide all documents
required by the title insurance company to obtain title insurance
for the Property.
4 . The Closing.
4 .1 Date. If Purchaser elects to exercise this
Option, the closing shall take place on or before
December 31, 1996, provided that such closing date may be
extended by agreement of the parties to permit curing
unsatisfactory title condition (s) . The place of closing
Page 4 of 13
shall be Transnation Title Insurance Company, Fort Collins,
Colorado, or such other place designated by Purchaser. The
hour shall be mutually agreed upon by the parties .
4 . 2 Obligations at Closing. The following shall occur
at the closing, each being a condition precedent to the
others and all being considered simultaneously:
(a) Seller shall execute, have acknowledged and
deliver to Purchaser a bargain and sale deed conveying
title to the Purchase Property in accordance with this
Option Agreement.
(b) Seller and Purchaser shall both execute and
deliver copies of the Lease Agreement attached hereto
as Exhibit A.
(c) Purchaser shall deliver to Seller the
Purchase Price and Rent Payment.
(d) Seller shall deliver to Purchaser possession
of the Purchase Property and Lease Property and
Purchaser shall be entitled to full enjoyment of the
Property on the closing date subject to the matters set
forth or referred to herein.
(e) Each party shall pay their own expenses
incurred in this transaction; provided, however, that
each party shall pay one-half of the fees for real
estate closing services .
(f) Each party shall execute purchaser' s and
seller' s statements and such other documents,
Page 5 of 13
certificates and the like as may be necessary or
helpful to carry out the intent of this Agreement.
5 . Defaults and Remedies .
5 . 1 Default. Time is of the essence hereof. In the
event of default by either party under this Agreement prior
to or at the closing, the remedies upon such default are as
set forth below unless otherwise provided in this Agreement.
5 .2 Remedies . If any payment or other condition
hereof is not made, tendered or performed by either Seller
or Purchaser as herein provided, then this Agreement, at the
option of the party not in default, may be terminated by
such party. In the event of such default by Seller, and if
Purchaser elects to treat the Agreement as terminated, then
any payments made hereunder shall be returned to Purchaser.
In the event of such default by Purchaser, and if the Seller
elects to treat the Agreement as terminated, then all
payments made hereunder shall be retained by Seller. In the
event however the non-defaulting party elects to treat this
Agreement as being in full force and effect, the non-
defaulting party shall have the right to enforce the
provisions of this Agreement in an action for specific
performance or may recover such other damages as may be
properly recoverable in an action at law. In the event that
a suit is filed, the prevailing party shall be entitled to
recover all costs and expenses, including reasonable
attorney fees.
Page 6 of 13
6 . Miscellaneous .
6 .1 Notices . Except as otherwise provided herein, all
notices and other communications required or permitted under
this Agreement shall be in writing and shall be delivered to
the other party by personal delivery to the office of such
party or by registered or certified mail, as follows :
TO SELLER: Jerome Cornell, Conservator for Pauline
L. Franz, a protected person
405 Gates Street, Post Office Box 161
Elburn, Illinois 60119
and copies to J. Bradford March, March & Myatt, 110
East Oak Street, Post Office Box 469, Fort Collins,
Colorado 80522 and Gregory S . Bell, Bell & Carney, 322
East Oak Street, Fort Collins, Colorado 80524 .
TO PURCHASER: Jerry White
Larimer County Engineering Department
218 West Mountain
Post Office Box 1190
Fort Collins, Colorado 80522-1190
and a copy to Marla R. Hehn, Assistant County
Attorney' s Office, Post Office Box 1606, Fort Collins,
Colorado 80522 .
Any such notice shall be effective (i) in the case of
personal delivery, the time when such notice is actually
received, or (ii) in the case of registered or certified
mail, the third day following its deposit in the United
States mail, postage prepaid and addressed to the address
for the receiving party as set forth above or as changed by
notice given as provided.
6 .2 Binding Effect . This Agreement shall be binding
upon the Seller, its successors and assigns and shall inure
Page 7 of 13
to the benefit of the Purchaser and its successors and
assigns . Upon exercise of this Option as provided herein,
this Agreement shall be binding upon the Purchaser and its
successors and assigns and inure to the benefit of the
Seller and its successors and assigns .
6 . 3 Amendments . This Agreement and the exhibits
attached hereto contain the entire agreement between the
parties and may not be modified in any manner except by an
instrument in writing signed by the parties .
6 .4 No Waiver. No waiver of any term, provision or
condition of this Agreement in any one or more instances
shall be deemed to be or shall be construed as a further or
continuing waiver of any such term, provision or condition
or as a waiver of any other term, provision or condition of
this Agreement.
6 . 5 Headings and Recitals . The section and subsection
headings contained herein are inserted only for convenient
reference and do not define, limit or prescribe the scope of
this Agreement or any exhibit attached hereto. The recitals
of this Agreement are included as an aid to interpretation
of this Agreement, but do not themselves create, limit or
define the rights or obligations of the parties hereto.
6 . 6 Counterparts . This Agreement may be executed in
multiple counterparts, each of which shall constitute one
Page 8 of 13
original and all of which taken together shall constitute
one and the same document.
6 .7 Survival . All covenants, conditions and
requirements imposed by this Agreement shall survive the
closing to the extent that the same continue to be
applicable after closing and shall not merge in the closing.
6 . 8 Construction. When necessary for proper
construction, the masculine of any word used in this
Agreement shall include the feminine and neuter genders and
the singular shall include the plural and vice versa. The
entire Agreement shall be governed by and interpreted in
accordance with laws of the State of Colorado. The parties
hereto consent to venue and jurisdiction in the District
Court of Larimer County, Colorado in any action commenced by
either party relating to this Agreement or the transactions
contemplated hereby.
7 . Condition of Property.
7 .1 "As Is" /Disclaimer of Warranties . Purchaser
acknowledges and agrees that, except as otherwise expressly
provided herein, neither Seller nor anyone acting for or on
behalf of Seller has made any representation, warranty,
statement or promise to Purchaser ccncerning the Property,
the quality, value, physical aspects or condition thereof,
any dimensions or specifications of the Property, the
feasibility, desirability, convertibility of the Property
Page 9 of 13
for or into any particular use, the current or projected
income or expense of the Property or any other matter with
respect to the Property. Purchaser further acknowledges and
agrees that in entering into this Agreement Purchaser has
not relied upon any representation, statement or warranty of
Seller or anyone acting for or on behalf of Seller, other
than as expressly contained in this Agreement, and that all
matters concerning the Property have been independently
verified by Purchaser and that Purchaser is purchasing the
Property based on Purchaser' s own inspection and examination
thereof. Purchaser is purchasing the Property •as is' and
Purchaser hereby waives and except as otherwise provided in
this Agreement Seller hereby disclaims any warranties of any
kind or type whatsoever with respect to the Property,
whether express or implied, including by way of
illustration, but not limitation, those of marketability and
merchantability of title fitness for a particular purpose,
tenantability, habitability, use and all warranties relating
to compliance by the Property with any applicable
governmental laws and regulations, including, without
limitation, building and zoning codes, the soil conditions
of the Property, and the compliance by the Property with any
environmental requirements. Further, Purchaser hereby
specifically assumes the risk of confirming that the
Property is served by sufficient utilities, including,
Page 10 of 13
without limitation, water, sewer, gas, electric and
telephone service. The terms of this paragraph shall
survive the closing and conveyance of the Property to
Purchaser by Seller.
7 .2 Environmental Condition. The parties acknowledge
that the Purchase Property and Lease Property are located
immediately to the east of property which has been used by
Purchaser as the Larimer County Landfill. Purchaser has
monitored a portion of the Property for a number of years
for environmental contaminants and has installed a variety
of wells on the Property for that purpose . Purchaser
acknowledges that it has inspected the environmental
condition of the Property to the extent it desires to do so
and is accepting the Property "as is" . Purchaser further
states that, in purchasing the Property, it is in no way
relying upon any statements or representations made by the
Seller, or by the Seller' s agents or employees, regarding
the condition of the Property. Finally, Purchaser assumes
full responsibility for all defects, flaws and conditions
existing on the property which were not ascertained during
the aforementioned inspection.
In the event Purchaser exercises the option and
purchases the Purchase Property, Purchaser agrees and
covenants not to make any claim or file any suit against
Seller for the environmental condition of the Purchase
Page 11 of 13
Property, or for the environmental condition of any portion
of the Lease Property which may be purchased by Purchaser
pursuant to the Lease.
Purchaser' s covenant shall survive the closing of the
sale of the Purchase Property if it is purchased, and any
future closings of the sale of each parcel of the Lease
Property which may be purchased.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed the day and year first above written.
SELLEF I D�
I )Franz
e Cornell as Trustee of the auline
Charitable Remainder Trust
PURCHASER:
Larimer County, Colorado
_
By:
Its :
APPROV�BD^^AS TO POR :
1nN` �\ I
ASSISTA2tT COUNTY ATTOM.X
STATE OF
COUNTY OF ss '
Subscribed and sworn to before me this If,* day of
40-4 , 1996, by Jerome Cornell as Trustee
of the Pauline L. Franz (writable Ranainder Trust.
Witness my hand and official seal .
Notary Public
My commission expires: PUSUC
y Commission Expires
March 25, 1998
Page 12 of 13
STATE OF COLORADO )
COUNTY OF LARIMER
Subscribed and sworn to before me this P
�tr J ..
1996, by .. \�L�t day of F,
as L
(title) .
Witness my hand and official seal.
otary Public
My commission expires:
My Commission Expires April 17. 1998
2\m h\C0unty\agree\franz.p2.agt
Page 13 of 13
EXHIBIT •A•
LEASE
BETWEEN
JERRY CORNELL AS TRUSTEE OF THE PAULINE L. FRANZ CHARITABLE pIMAIIIDER
TRUST
LANDLORD
AND
BOARD OF COUNTY COMMISSIONERS, LARTMER COUNTY, COLORADO
TENANT
PREMISES
SW% OF THE NW14 OF SECTION 10, TOWNSHIP 6, RANGE 69;
SEW OF THE NWA OF SECTION 10, TOWNSHIP 6, RANGE 69;
NWA OF THE SWA OF SECTION 10, TOWNSHIP 6, RANGE 69
initial•
TABLE OF CONTENTS
SECTION 1 BASIC LEASE PROVISIONS
Paragraph 1. 01 Introductory Statement
Paragraph 1. 02 Date and Parties
Paragraph 1 . 03 Premises
Paragraph 1 . 04 Use
Paragraph 1. 05 Term
SECTION 2 RENT AND SECURITY
Paragraph 2 . 01 Rent
Paragraph 2 . 02 Additional Rent/Expenses
Paragraph 2 . 03 Security Deposit
SECTION 3 APPROPRIATIONS
SECTION 4 AFFIRMATIVE OBLIGATIONS
Paragraph 4 . 01 Repair and Maintenance
SECTION 5 INDEMNIFICATION
Paragraph 5 . 01 Tenant' s Indemnity
Paragraph 5 . 02 Transfer of Premises
SECTION 6 LOSS OF PREMISES
Paragraph 6 . 01 Condemnation
SECTION 7 DEFAULT
Paragraph 7 . 01 Tenant' s Default
Paragraph 7 . 02 Landlord' s Remedies
Paragraph 7 . 03 Landlord' s Default
Paragraph 7 . 04 Self-Help
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SECTION 8 NONDISTURBANCE
Paragraph 8 . 01 Quiet Enjoyment
SECTION 9 PURCHASE OF PREMISES
Paragraph 9 .01 Purchase Rights
Paragraph 9 . 02 Notice of Obligations
Paragraph 9 . 03 Conveyance Obligations
Paragraph 9 .04 Death of Pauline L. Franz
SECTION 10 MISCELLANEOUS
Paragraph 10 . 01 Broker' s Warranty
Paragraph 10 .02 Attorneys' Fees
Paragraph 10 .03 Notices
Paragraph 10 . 04 Partial Invalidity
Paragraph 10 . 05 Waiver
Paragraph 10 . 06 Binding on Successors
Paragraph 10 . 07 Governing Law
Paragraph 10 . 08 Survival of Remedies
Paragraph 10 . 09 Entire Agreement
Paragraph 10 .10 Definition of Lease
Paragraph 10 . 11 Appraisal and Approval
Contingencies
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SECTION 1 — BASIS LEASE PROVISIONS
1 . 01 Introductory Statement. Pauline L. Franz (Franz) is
the widow of Henry Franz (June 14, 1891 — July 3 , 1967) . Jerome
M. Cornell serves as trustee (hereinafter sometimes the Trustee)
for the Pauline L. Franz Charitable gMaindf-r Trust dated
December 18 , 1996 (hereinafter sometimes the Trust and
Landlord) . The Trust was created to provide for Franz' needs
during the remainder of her life.
The Trustee has legal title to and controls for Franz'
benefit 200 acres of property located in Section 10, Township 6
North, Range 69 West of the 6th P .M. , Larimer County, Colorado.
The Trust contemplates transferring to Larimer County and Larimer
County contemplates acquiring from the Trust 160 acres of this
property in 40-acre parcels . The portion of the property to be
acquired is more particularly described as the N'/ of the SWI/. and
the S% of the NW'/,. At the time of the signing of this Lease,
Larimer County purchased the NE'/, of the SW1/. of Section 10,
Township 6 North, Range 69 West, Larimer County, Colorado. On or
prior to December 15, 1998, the parties contemplate that Larimer
County will acquire the SE'/, of the NW1/,. On or prior to
December 15, 2000, the parties contemplate that Larimer County
shall acquire the SW1/ of the NW1/,. On or prior to December 15,
2002, the parties contemplate that Larimer County will acquire
the NWI/, of the SWl/..
It is the desire of the Franz family that the property to be
acquired shall be known as the "Franz Farm" or the "Franz
Natural Area" based upon the Franz family' s long history in
Larimer County. Henry Franz, Franz' deceased husband, was born in
Larimer County in 1891 . His parents, Leonard and Katherine Franz
immigrated from Germany in 1882 and settled in Larimer County in
the 18801s .
The parties to this Lease recognize that Larimer County' s
obligations to lease and acquire the property are dependent upon
adequate funds for that purpose being budgeted, appropriated and
otherwise made available .
1 . 02 Date and Parties . This lease (Lease) is entered into
effective as of the date of closing of the "Purchase Property" as
defined in the Option Agreement between Jerome Cornell as
Trustee of the Pauline L. Franz Charitable Panainder Trust
(Landlord) and the Board of County Commissioners of Larimer
County, Colorado (Tenant) .
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1 . 03 Premises . Landlord leases to Tenant the SEI/ of the
NWi/,; the SWI/, of the NWIX and the NW'/, of the SWI/, of Section 10,
Township 6 North, Range 69 West of the 6th P.M. , Larimer County,
Colorado (Premises) . The Premises consists of vacant farm
ground and no improvements are located on the Premises . During
the term of the Lease, Landlord shall have no right to construct
any improvements, including utilities, on the Premises .
1 . 04 Use. During the term of the Lease, the Tenant will use
the portion of the Premises which are being leased for public
purposes such as open space, natural area, wildlife habitat, or
parks and trails . The Premises shall be known as the "Franz
Natural Area" or the "Franz Farm" ; provided, however, that the
Landlord acknowledges that the Premises may be managed by the
Tenant or the City of Fort Collins as part of the Cathy Fromme
Natural Area. The Tenant will construct no improvements on the
Premises which are being leased without Landlord' s prior written
consent, which consent shall not be unreasonably withheld.
1 . 05 Term. This Lease will commence on the date of closing
of the "Purchase Property" as defined in the Option Agreement and
shall extend through December 31, 2002 (the termination date)
unless the Lease is sooner terminated as provided for herein or
sooner terminated because the Tenant acquires all of the Premises
prior to the termination date, or unless the Tenant does not
budget, appropriate and otherwise make available sufficient funds
to make the next due rent payment and purchase in which event
this Lease shall terminate at such next rental due date. By this
Lease, the Tenant has rights to purchase portions of the Premises
in 1998, 2000 and 2002 . If the Tenant acquires portions of the
Premises, those portions shall no longer be subject to this Lease
after the County has paid the consideration required in
conjunction with the acquisition of each given portion of the
Premises .
SECTION 2 — RENT AND SECURITY
2 . 01 Rent. Tenant shall pay Sixty Thousand and no/100
Dollars ($60, 000 . 00) as rent and as consideration for the right
to purchase the Premises . These payments shall be made as
follows : Thirty Thousand and no/100 Dollars ($30, 000 . 00) shall
be payable on the date of closing on the "Purchase Property" as
defined in the Option Agreement. This payment shall satisfy rent
due from the date of such closing through December 14, 1998 .
Twenty Thousand and no/100 Dollars ($20, 000 . 00) shall be payable
December 15, 1998 . This payment shall satisfy rent due from
December 15, 1998 through December 14 , 2000 . Ten Thousand and
no/100 Dollars ($10, 000 . 00) shall be payable on December 15,
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2000 . This payment shall satisfy rent due from December 15, 2000
through December 31, 2002 .
2 . 02 Additional Rent/Expenses . Certain costs are
associated with the ownership of the Premises . This section is
intended to address how such other expenses shall be paid during
the term of this Lease. To the extent that the Tenant is
required to make any payments or perform any actions on the
property, and the Tenant fails to perform those actions after
proper notice by Landlord, any payments due shall be treated as
additional rent. Likewise, if the Tenant fails to perform any
action hereunder and Landlord, after proper notice, performs such
action on behalf of the Tenant, Landlord' s costs incurred shall
be treated as additional rent.
2 . 02 (a) Taxes . The entire parcel of property which
Landlord owns in Section 10, Township 6 North, Range 69 West,
Larimer County, Colorado, is identified by the Larimer County
Treasurer' s Office as Schedule Number 201472 . Landlord has
failed to pay 1995 taxes and penalties on such property in the
approximate amount of $251 . 18 . Those taxes and penalties are
currently due and payable . Landlord agrees that the entire 1995
tax and penalty amount due, together with the 1996 taxes due for
the Premises and the "Purchase Property" through the date of
closing on the "Purchase Property" shall be paid by Landlord at
the time the sale of the "Purchase Property" as defined in the
Option Agreement (NEB/ of the SE'/.) .
Colorado Revised Statute § 30-11-104 . 1 authorizes counties
to enter into lease purchase agreements including options to
purchase, transfer and acquire title to such property. Pursuant
to C .R. S . 5 30-11-104 . 2 , property acquired in this manner is
exempt from taxation so long as it is used for governmental
purposes . The County Treasurer has been advised by the State Tax
Administrator that pursuant to this provision, the Premises will
be exempt from taxation from the day of execution of the Lease
through the date title is transferred to Tenant or the Lease is
otherwise terminated. Tenant agrees that if the Premises are
determined in the future to be subject to taxation then Tenant
shall timely pay all property taxes associated with the ownership
of the Premises during the term of the Lease. Landlord shall
promptly forward any property tax bills to Tenant.
2 . 02 (b) Insurance . Each party shall be obligates to pay
any costs associated with insuring against its risk of ownership
or use of the Premises .
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2 . 02 (c) Maintenance. Tenant agrees to perform all
maintenance required on the Premises during the term of the Lease
including all costs associated with weed, animal or other pest
control .
2 . 03 Security Deposit. Tenant has paid no security deposit
to Landlord in conjunction with its use of the Premises.
SECTION 3 — APPROPRIATIONS
The financial obligations of Tenant which are payable after
the current fiscal year are contingent upon funds payable under
the terms of this Lease being budgeted, appropriated, and
otherwise made available. Because the term of this Lease will
extend beyond the current fiscal year, Landlord and Tenant
understand and intend that the obligations of Tenant to pay the
installments of rent hereunder or to acquire portions of the
Premises constitute a current expense of Tenant payable
exclusively from Tenant' s appropriated funds and shall not be
construed to be a general obligation indebtedness or a multiple
fiscal year direct or indirect debt or other financial obligation
within the meaning of Sections 1 through 6 of Article XI of the
Colorado Constitution, Section 20, Article X of the Colorado
Constitution or any other constitutional or statutory limitation
or requirement applicable to the Tenant concerning the creation
of indebtedness or obligations . Neither Tenant nor Landlord on
its behalf, has pledged the full faith and credit of the Tenant,
or any agency or department thereof for the payment of the
installments of rent or for the purpose of acquiring any portion
of the Premises and this Lease shall not directly or contingently
obligate the Tenant or any agency or department thereof to apply
money from, or to levy or pledge any form of taxation to account
for the payments due hereunder.
If Tenant fails to budget, appropriate and otherwise make
available sufficient funds to make the next due rental payment
and purchase of property, this Lease shall automatically
terminate at such next rental due date and each party shall be
released from all further obligations hereunder.
SECTION 4 — AFFIRMATIVE OBLIGATIONS
4 . 01 Repair and Maintenance . Tenant shall keep the
Premises in good order at all times including maintaining the
Premises such that the Premises comply with the requirements of
all applicable statutes, laws and other legal authorities
including all requirements related to weed, pest and animal
control. Tenant shall insure that the Premises are safe for
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their intended public use at all times. Landlord shall not be
obligated to perform any maintenance or upkeep on the Premises.
SECTION 5 — INDEMNIFICATION
5 . 01 Tenant' s Indemnity. Tenant, to the extent permitted by
law, shall indemnify, defend, and hold Landlord harmless from
claims :
(i) for personal injury, death, or property damage;
and
(ii) for incidents occurring on the Premises;
provided, however, that nothing contained in this Lease shall be
deemed a waiver of Tenant' s sovereign immunity or the limitations
on liability set forth in the Colorado Governmental Immunity Act.
5 . 02 Transfer of Premises. If the Premises are sold or
transferred, voluntarily or involuntarily, Landlord' s Lease
obligations and liabilities accruing after the transfer shall be
the sole responsibility of the new owner if the new owner is able
to and expressly agrees in writing to assume Landlord' s
obligations.
SECTION 6 — LOSS OF PREMISES
6 . 01 Condemnation. If all or any portion of the Premises is
taken or condemned by competent authority, this Lease shall
terminate as to the portion of the Premises taken, upon the date
when possession of the Premises so taken shall be acquired by
such authority.
If all or any portion of the Premises is taken or condemned
by competent authority, each party shall be entitled to receive
its own award of damages from the condemning authority.
SECTION 7 — DEFAULT
7 . 01 Tenant' s Default . Except as otherwise provided herein,
each of the following constitutes a default by Tenant (Default) :
(i) Tenant' s failure to pay rent or additional rent
within seven (7) days after Tenant receives notice from
Landlord of Tenant' s failure to pay rent or additional
rent; and
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(ii) Tenant' s failure to perform or observe any other
Tenant obligation (including the obligation to give
notice of appropriations pursuant to Section 9) after a
period of thirty (30) days or the additional time, if
any, that is reasonably necessary to promptly and
diligently cure the failure, after it receives notice
from Landlord setting forth in reasonable detail the
nature and extent of the failure and identifying the
applicable Lease provision (s) ;
(iii) Tenant' s failure to timely complete a closing on
the purchase of the applicable portion of the Premises
following notice of appropriation.
7 . 02 Landlord' s Remedies .
7 . 02 (a) Remedies . Landlord in addition to the remedies
given in this Lease or under the law, may do any one or more of
the following if Tenant commits a Default hereunder:
(i) end this Lease (including Tenant' s right to
purchase portions of the Premises) , and Tenant shall
then surrender the Premises to Landlord;
(ii) enter and take possession of the Premises either
with or without process of law and remove Tenant, with
or without having ended the Lease.
Tenant waives claims for damages by reason of Landlord' s reentry
or repossession and for damages by reason of any legal process .
Landlord shall have no right to recover any amounts due hereunder
from Tenant except additional rent amounts due pursuant to
Section 2 . 02 . Rather, Landlord' s sole right hereunder in the
event Tenant fails to pay rent or fails complete closings on the
purchase of portions of the Premises shall be to terminate this
Lease as provided for herein. Notwithstanding the foregoing,
Tenant shall be liable for rent, and Landlord may recover such
rent for any period for which Tenant has provided Landlord with a
notice of appropriation of rent and of its intent to continue the
Lease as provided for in Section 9 .
7 . 03 Landlord' s Default. Landlord' s failure to perform or
observe any of its Lease obligations after a period of thirty
(30) days or the additional time, if any, that is reasonably
necessary to promptly and diligently cure the failure after
receiving notice from Tenant is a Default. The notice shall give
in reasonable detail the nature and extent of the failure and
identify the Lease provision (s) containing the obligation (s) .
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If Landlord commits a Default, Tenant may pursue any
remedies given in this Lease or under the law.
7 . 04 Self-Help. If either party fails to cure a default
within the thirty (30) day time period set forth herein
(Defaulting Party) , the other party (Nondefaulting Party) may,
without being obligated and without waiving the Default, cure the
Default. The Nondefaulting Party may enter the Premises to cure
the Default. The Defaulting Party shall pay the Nondefaulting
Party, upon demand, all costs, expenses, and disbursements
incurred by the Nondefaulting Party to cure the Default.
SECTION 8 — NONDISTURBANCE
8 . 01 Quiet Enjoyment. Landlord warrants that it owns the
Premises free and clear of all leases, tenancies, liens and
encumbrances .
SECTION 9 — PURCHASE OF PREMISES
9 . 01 Purchase Rights . As set forth herein, the parties have
executed this Lease in anticipation that Tenant will acquire
ownership of the entire Premises . Tenant has separate rights to
purchase the SEA/, of the NWl/, of Section 10-6N-69W (SE'/, NW'/,) , the
SW'/, of the NW'/, of Section 10-6N-69W (SW�/, NW'/,) and the NW'/, of the
SW'/, of Section 10-6N-69W (NW1/, SW'/,) .
9 . 01 (a) SE'/, NW'/,. If sufficient funds are budgeted,
appropriated and otherwise made available, � Tenant shall purchase
the SE11, NW'/, on December 15, 1998 . The purchase price for the SE'/,
NW'/, shall be One Hundred Thousand and no/100 Dollars
($100, 000 . 00) which shall be payable at closing on December 15,
1998 in cash or certified funds or by Larimer County warrant.
Tenant shall provide Landlord with notice that Tenant has
appropriated sufficient amounts to make the rent payment and the
purchase payment due on December 15, 1998 on or before January
31, 1998 .
9 . 01 (b) SW'/. NW/,. If sufficient funds are budgeted,
appropriated and otherwise made available, Tenant shall purchase
the SW'/. NW'/, on December 15, 2000 . The purchase price for the SW'/.
NW'/, shall be One Hundred Ten Thousand and no/100 Dollars
($110, 000 . 00) which shall be payable on December 15, 2000 in cash
or certified funds or by Larimer County warrant. Tenant shall
provide Landlord with notice that Tenant has appropriated
sufficient amounts to make the rent payment and the purchase
payment due on December 15, 2000 on or before January 31, 2000 .
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9 . 01 (c) NW1/. S . If sufficient funds are budgeted,
appropriated and otherwise made available, Tenant shall purchase
the SFll/, NW'/. on December 15, 2002 . The purchase price for the SWI/
NW1/. shall be One Hundred Twenty Thousand and no/100 Dollars
($120, 000 . 00) which shall be payable on December 15, 2002 in cash
or certified funds or by Larimer County warrant. Tenant shall
provide Landlord with notice that Tenant has appropriated
sufficient amounts to make the purchase payment due on
December 15, 2002 on or before January 31, 2002 .
9 . 02 Notice of Obligations . Pursuant to this section,
Tenant is required to provide notice to Landlord of its intent to
continue the Lease and that sufficient amounts have been
budgeted, appropriated and otherwise made available by Tenant to
meet the rent payment and/or purchase requirements of this
section on or before January 31st of 1998, 2000 and 2002 . If
sufficient funds have been so appropriated and Tenant fails to
timely provide notice, Landlord may treat the failure as a
default pursuant to Section 7 . 01 (ii) and may provide Tenant with
notice of such default.
9 . 03 Conveyance Obligations . At the time of conveyance of
each of the purchased parcels, Landlord will provide Tenant with
a reasonably acceptable bargain and sale deed conveying Tenant' s
ownership in the property being purchased. Title to the portion
of the Premises being conveyed shall be in the same condition as
title exists on the date of the closing of the "Purchase
Property" as defined in the Option Agreement, and Landlord shall
not, without Tenant' s prior written consent, alter the status of
the title to the Premises or grant any easements, encumbrances,
liens or rights-of-way over, on or against the Premises .
Landlord shall have no obligation to provide Tenant with any form
of title insurance, abstract or any other assurances as to the
status of the title at the time of conveyance. Rather, Tenant
shall bear the cost to obtaining any title insurance or other
title assurances . Seller shall cooperate with Purchaser and
provide all documents required by the title insurance company to
obtain title insurance. The place of closing shall be
Transnation Title Insurance Company, Fort Collins, Colorado, or
such other place designated by Purchaser. The hour shall be
mutually agreed upon between the parties . Each party shall pay
their own expenses incurred in the transactions; provided,
however, that each party shall pay one-half of the fees for real
estate closing services . Each party shall execute Purchaser' s
and Seller' s statements and such other documents, certificates
and the like as may be necessary or helpful to carry out the
intent of the purchase provisions of the Lease.
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9 . 04 Death of Pauline L. Franz. In the event of the death
of Pauline L. Franz, Tenant shall have a period of six (6) months
in which to elect to purchase any portion of the remainder of the
Premises which has not otherwise been acquired in accordance with
this Section 9 . If Tenant elects to purchase all or a portion of
Premises within said six (6) month period, Purchaser shall pay
Landlord the remaining purchase price due as set forth in this
Section 9 (no additional rental payments shall be paid) in cash
or certified funds or by Larimer County warrant thirty (30) days
after such election is made and in accordance with Section 9 . 03 .
Landlord shall convey the applicable portions of the remainder of
the Premises which Tenant has elected to purchase to Tenant. If
Tenant does not so elect or elects to purchase only a portion of
the Premises, this Lease and the rights to purchase the Premises
shall remain in full force and effect .
SECTION 10 — MISCELLANEOUS
10 . 01 Broker' s Warranty. The parties warrant that
neither has contacted a broker in conjunction with the sale or
lease of the Premises or any portion of the Premises and that no
brokerage commissions will be due as a result of any action of
that party as a result of any sale or lease. To the extent
permitted by law, the party who breaches this warranty shall
defend, hold harmless, and indemnify the nonbreaching party from
any claims or liability arising from the breach; provided,
however, that nothing contained herein shall be deemed as a
waiver of Tenant' s sovereign immunity or the limitations on
liability set forth in the Colorado Governmental Immunity Act.
10 . 02 Attorneys' Fees . In any litigation between the
parties regarding this Lease, the losing party shall pay to the
prevailing party all reasonable expenses and court costs
including attorneys' fees incurred by the prevailing party. A
party shall be considered the prevailing party if :
(i) it initiated the litigation and substantially
obtains the relief it sought, either through a judgment
or the losing party' s voluntary action before
arbitration (after it is scheduled) , trial, or
judgment;
(ii) the other party withdraws its action without
substantially obtaining the relief it sought; or
(iii) it did not initiate the litigation and judgment
is entered for either party, but without substantially
granting the relief sought.
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10 . 03 Notices. Unless a Lease provision expressly
authorizes verbal notice, all notices under this Lease shall be
in writing and delivered to the office of a party by personal
delivery or by registered or certified mail, postage prepaid, as
follows:
To Tenant:
Before Term begins :
Jerry White
Larimer County Engineering Department
218 West Mountain
Post Office Box 1190
Fort Collins, Colorado 80522-1190
After Term begins :
John MacFarlane, Director
Larimer County Parks Department
1800 South County Road 31
Loveland, Colorado 80537
and
Jerry White
Larimer County Engineering Department
218 West Mountain Avenue
Fort Collins, Colorado 80521
with a copy to Marla R. Hehn, Larimer County Attorney' s Office,
Post Office Box 1606, Fort Collins, Colorado 80522 .
and
To Landlord:
Jerry Cornell, Trustee of the Pauline L.
Franz Charitable PEminder Trust
Post Office Box 161
405 Gates Street
Elburn, Illinois 60119
with copies to J. Bradford March, March & Myatt, 110 East Oak
Street, Post Office Box 469, Fort Collins, Colorado 80522 and
Gregory S. Bell, Bell & Carney, 322 East Oak Street, Fort
Collins, Colorado 80524 .
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Any such notice shall be effective (i) in the case of
personal delivery, when such notice is actually received, or (ii)
in the case of registered or certified mail, the third day
following its deposit in the United States mail, postage prepaid
addressed as set forth above.Either party may change these
persons or addresses by giving notice as provided above.
10 . 04 Partial Invalidity. If any Lease provision is
invalid or unenforceable to any extent, then that provision and
the remainder of this Lease shall continue in effect and be
enforceable to the fullest extent permitted by law.
10 . 05 waiver. The failure of either party to exercise
any of its rights is not a waiver of those rights . A party
waives only those rights specified in writing and signed by the
party waiving its rights.
10 . 06 Binding on Successors . This Lease shall bind the
parties' heirs, successors, representative, and permitted
assigns .
10 . 07 Governing Law. This Lease shall be governed by
the laws of the State of Colorado .
10 . 08 Survival of Remedies . The parties' remedies shall
survive the ending of this Lease when the ending is caused by the
Default of the other party.
10 . 09 Entire Agreement . This Lease contains the entire
agreement between the parties about the Premises . This Lease
shall be modified only by a writing signed by both parties .
10 . 10 Definition of Lease. This Lease consists of the
following:
(i) Title Page;
(ii) Table of Contents;
(iii) Sections 1 through 10; and
(iv) Signature Page
10 . 11 Appraisal and Approval Contingencies. This Lease
is contingent upon Purchaser obtaining an appraisal acceptable to
Purchaser on or before December 20, 1996 . In the event the
appraisal is not acceptable to Purchaser it may elect to
terminate this Lease. This Lease is further contingent upon
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approval by the Larimer County Board of County Commissioners on
or before December 31, 1996 . In the event that the Larimer
County Board of County Commissioners fails to approve this Lease
on or before December 31, 1996, this Lease shall automatically
terminate and each party shall be released from all obligations
hereunder.
LANDLORD: Jerry Cornell?as Trustee of
the Pauline L ranz CWitable Remainder
Trust
SIGNATURE:
NAME:
TITLE:
TENANT: Board of Co ty C ss` oAI ners,,
Larimer Count ad
SIGNATURE:
NAME:
f
TITLE: Ch ' r J
ATTEST: y 1 ( l c_L
Deputy Clerk
DATE:
APPA VED AS TO FORM:
' �� kZ�u
ASSISTANT OQ.T= ATTORNEY
STATE OF )
COUNTY OF ) ss .
n Subscribed and sworn to before me this /,Fth day of
i � l 1996, by Jerry Cornell—as Trustee of
t he L. Franz arittable Remainder Trust.
Witness my hand and official seal . /
Notary PU1Dl3.0
My commission expires :
i.' Commission Expires
I vitiate
Page 15 of 16
STATE OF COLORADO )
COUNTY OF LARIMER ) as .
Subscribed and sworn to before me this /,�`f�dday of
�D � / , 1996 b
as C air, Larimer County Board of�CountyOommissiloners an
1� as Deputy Clerk.
Witness my hand and official seal.
Ngtary P bli,cc�
My commission expires :
My Cemmiccion Ernir4g Anil 17, 199.9
2\mrh\<o�nty\agree\franz2.Ise
Initials
Page 16 of 16
HELP PRESERVE OPEN SPACES INITIATIVE
WHEREAS, there is citizen support in Larimer County to preserve and provide open space,
natural areas, wildlife habitat, parks and trails for today and for the future; and
WHEREAS, the need exists now in Larimer County and in the cities and towns of Loveland, Fort
Collins, Estes Park, Berthoud, Timnath and Wellington to protect, acquire, improve and maintain
open space, natural areas, wildlife habitat, parks and trails; and
WHEREAS, no other county-wide funding source exists to protect open space and provide trails;
and
WHEREAS, the intent of this initiative is to establish one county-wide sales and use tax to be
shared by Larimer County, Loveland, Fort Collins, Estes Park, Berthoud, Timnath and Wellington
for open space, natural area, wildlife habitat, park and trail purposes on a willing seller basis only;
and
WHEREAS, Larimer County and the cities and towns in Larimer County have developed master
plans for open space, natural area, park and trail purposes; and
WHEREAS, Larimer County and the cities and towns in Larimer County will coordinate
implementation of those plans involving open space, natural areas, wildlife habitat, parks and
trails; and
WHEREAS, Larimer County will coordinate with unincorporated communities including but not
limited to Laporte, Bellvue, Redfeather Lakes regarding their open space, natural area, wildlife
habitat, park and trail goals; and
WHEREAS, the intent of this initiative is to supplement existing funding sources, if any, for open
space, natural area, wildlife habitat, park and trail purposes; and
WHEREAS, agriculture is determined to be significant to Larimer County's cultural heritage,
therefore preservation of lands for agricultural purposes from willing participants is desirable; and
WHEREAS, Larimer County and the cities and towns in Larimer County will partner with each
other and with land trusts and other state and federal agencies in order to jointly pursue funds
from the GO Colorado Trust Fund as well as other appropriate grant programs; and
WHEREAS, there is a citizens effort to place an initiative on the November, 1995 ballot to fund
open space, natural areas, wildlife habitat, parks and trails with a county-wide 1/4 cent sales and
use tax (not on food) that is limited to eight years.
NOW, THEREFORE, BE IT RESOLVED AS FOLLOWS:
LTHAT for the purposes of open space, natural areas, wildlife habitat, parks and trails, a
county-wide one quarter of one percent (0.25%) sales and use tax shall hereby be imposed
and the proceeds of the sales and use tax shall be expended by Latimer County for
Larimer County and on behalf of the municipalities in Larimer County including Loveland,
Fort Collins, Estes Park, Berthoud, Timnath and Wellington for the following purposes:
a) To acquire fee title interest in real property in Larimer County and within the
municipalities of Larimer County for open space, natural area, wildlife habitat,
park and trail purposes;
b) To acquire less than fee interests in real property such as easements (including
conservation and agricultural), leases, options, future interests, covenants,
development rights, subsurface rights and contractual rights, either on an exclusive
or nonexclusive basis, for open space, natural area, wildlife habitat, park and trail
purposes;
c) To acquire water rights and water storage rights for use in connection with the
aforementioned purposes;
d) To acquire rights-of-way and easements for trails and access to public lands in
Larimer County and within the municipalities of Latimer County, and to build and
improve such trails and accessways;
e) To allow expenditure of funds for joint projects between counties, municipalities,
recreation districts, other government entities, trusts, foundations or other public
or private entities for open space, natural area, wildlife habitat, park and trail
purposes in Larimer County and within the municipalities of Larimer County;
f) To improve and protect open space, natural areas, wildlife habitat, parks and trails;
g) To manage, patrol and maintain open space, natural areas, wildlife habitat, parks
and trails;
h) To pay for related collection, distribution and construction costs subject to
limitations stated herein.
ITHAT all acquisitions shall be carried out with good faith negotiations with willing
sellers; and that no entity receiving this sales and use tax revenue shall use such funds to
make any acquisition authorized by this initiative through eminent domain or the threat of
eminent domain;
3.THAT a separate fund, to be known as the "Larimer County Open Space Fund" (the
"Fund") shall be created and 100% of the revenue (gross receipts less collection and
distribution costs) derived from the sales and use tax shall be deposited thereto; and that a
minimum of fifty-five percent (55%) of the revenue deposited thereto shall be attributed to
the municipalities located wholly within Larimer County as further described in paragraph
6; and that the remaining fund balance, after municipal shares have been attributed, but not
less than thirty-five percent (35%), shall be allocated to Latimer County to be used solely
for the purposes stated herein and as further described in paragraph 15 below;
4.THAT interest generated from the revenues of the sales and use tax shall be used for the
purposes stated herein;
2
I O.THAT Larimer County shall create a separate account for the municipality of
Berthoud; and that 100% of the revenue attributed to Berthoud from said sales and use
tax and any investment income thereon which is attributed to Berthoud shall be deposited
thereto; and that the revenue deposited shall be limited to activities that identify, preserve
and maintain sites that are natural habitats for wildlife and native plants specifically
including wetlands, reservoirs and river corridors; protect farmlands and encourage
agricultural activities in those surrounding lands that also contribute to open space and
buffers with nearby communities; link the undeveloped areas associated with the
community gateway south of Berthoud with the Little Thompson corridor; protect the
undeveloped lands around and connecting the reservoirs in the Berthoud area all as
described in the Berthoud Comprehensive Plan, Land Use Plan and the Northern Colorado
Regional Planning Study;
I LTHAT Larimer County shall create a separate account for the municipality of Timnath;
and that 100% of the revenue attributed to Timnath from said sales and use tax and any
investment income thereon which is attributed to Timnath shall be deposited thereto; and
that the revenue deposited shall be used for the purposes stated herein;
12.THAT Larimer County shall create a separate account for the municipality of
Wellington; and that 100% of the revenue attributed to Wellington from said sales and use
tax and any investment income thereon which is attributed to Wellington shall be
deposited thereto; and that the revenue deposited shall be used for the purposes stated
herein;
13.THAT Larimer County shall distribute funds on behalf of a municipality upon the
municipality representing to the County that the funds are to be used in accordance with
this initiative and the County is entitled to rely upon such representation when making the
distribution and shall not be responsible for any misuse of funds so distributed;
14.THAT each municipality and Larimer County shall prepare a report to the public
annually regarding the use of the revenues attributed to said municipality and Larimer
County;
15.THAT, after municipal funds have been allocated, the remaining fund balance (not less
than thirty-five percent) shall be used by Larimer County for the purposes stated herein;
and that over the life of the sales and use tax; (i) not less than seventy percent (70%) of
the revenue shall be used solely for paying all or any part of the costs of acquiring interests
in, protecting and improving open space, natural areas, wildlife habitat, parks and trails;
(ii) not less than fifteen percent (15%) and up to thirty percent (30%) of the revenue shall
be set aside to be used solely for paying all or any part of the long-term costs of operating,
maintaining, and administering such interests and improvements; and (iii) not more than
fifteen percent (15%) of the revenue shall be used solely for paying any part of the costs of
improving existing regional parks including Carter Lake, Horsetooth Reservoir, Flatiron
Reservoir and Pinewood Reservoir; and that, if Larimer County terminates its lease with
the U.S. Bureau of Reclamation for recreational management of the aforementioned
4
water and sanitary facilities; campground and picnic facilities; swim beaches and
boating facilities; environmental education opportunities and access for the
physically disabled.
c) Trails provide links and access to outdoor recreation, open space, parks, natural
areas and other communities while preserving natural features or migration
corridors for wildlife.
I TTHAT a voluntary county-wide Advisory Board shall be established by the Board of
County Commissioners to make recommendations regarding the attributable revenue share
to Larimer County; and that the membership of the Advisory Board at a minimum shall
consist of one (1) elected official or appointee from the municipalities of Berthoud, Estes
Park, Fort Collins and Loveland; one (1) member from the Larimer County Planning
Commission; and four(4) citizens appointed at large. The membership of the Advisory
Board shall represent a balance in geography, population and interest;
18.THAT if the majority of the qualified electors voting thereon vote for approval of this
county-wide sales and use tax initiative, such county-wide sales and use tax shall be
effective throughout the incorporated and unincorporated portions of the Larimer County
beginning January 1, 1996;
19.That pursuant to Article 2 of Title 29 of the Colorado Revised Statutes, Larimer
County is authorized to pledge sales and use tax revenue for capital improvements and, if
the sales and use tax is approved and if the County acted to pledge sales and use tax for
capital improvements, the County shall pledge the revenue only for the purposes stated
herein.
20.THAT no land acquired through the revenues provided by this sales and use tax may be
sold, leased, traded, or otherwise conveyed, nor may an exclusive license or permit on
such land be given, nor may the use of such land be converted to purposes other than
those permitted hereby until approval of such action by the appropriate elected board or
council. Prior to such action, the proposed action shall be reviewed by the applicable
county or municipal advisory board, and a recommendation shall be forwarded to the
appropriate elected board or council. Approval of the action may be given only by a
majority vote of the members of the elected board or council after a public hearing held
with notice published at least ten (10) days in advance in the official newspaper of the
County and each municipality within the County, giving the location of the land in
question and the intended action relating thereto.
2 LTHAT (i) if any real property or interest therein acquired by use of proceeds of said
sales and use tax pursuant to paragraph 1 of this initiative ever be sold, exchanged,
transferred or otherwise disposed of, the consideration for such sale, exchange, transfer or
disposition shall be subject to the same expenditure and use restrictions as those set forth
herein for the original proceeds of said sales and use tax, including restrictions set forth in
this paragraph; and (ii) if any real property or interest therein acquired by use of proceeds
of said sales and use tax pursuant to paragraph 1 of this initiative shall ever be converted
6
the place or places at which the retail sales are consummated for the purpose of a sales tax
imposed by this initiative shall be determined by the provisions of Article 26 of Title 39,
Colorado Revised Statutes, as amended, and by rules and regulations promulgated by the
Department of Revenue. The amount subject to tax shall not include the amount of any
sales or use tax imposed by Article 26 of Title 39, Colorado Revised Statutes, as
amended. The tangible personal property and services taxable pursuant to this initiative
shall be the same as the tangible personal property and services taxable pursuant to
Section 39-26-104, Colorado Revised Statutes, as amended, and subject to the same
exemptions as those specified in Section 39-26-114, Colorado Revised Statutes, as
amended, and further subject to the exemption for sales of food (as the term "food" is
defined in Section 39-26-102(4.5)) specified in Section 39-26-114(1)(a)()CX), Colorado
Revised Statutes, as amended, the exemption for purchases of machinery and machine
tools specified in Section 39-26-114(11), Colorado Revised Statutes, as amended, and the
exemption for sales and purchases of those items in Section 39-26-114(1)(a)(=),
Colorado Revised Statutes, as amended. All sales of personal property on which a
specific ownership tax has been paid or is payable shall be exempt from the sales tax
imposed by Larimer County when such sales meet both of the following conditions:
a) The purchaser is a non-resident of or has his principal place of business outside of
Larimer County; and
b) Such personal property is registered or required to be registered outside the limits
of Larimer County under the laws of the State of Colorado.
The county-wide sales tax shall not apply to the sale of construction and building
materials, as the term is used in Section 29-2-109, Colorado Revised Statutes, as
amended, if such materials are picked up by the purchaser and if the purchaser of such
materials presents to the retailer a building permit or other documentation acceptable to
the County evidencing that a local use tax has been paid or is required to be paid.
The county-wide sales tax will not apply to the sale of tangible personal property at retail
or the furnishing of services if the transaction was previously subjected to a sales or use
tax lawfully imposed on the purchaser or user by another statutory or home rule county
equal to or in excess of that sought to be imposed by Larimer County. A credit shall be
granted against the sales tax imposed by Larimer County with respect to such transaction
equal in amount to the lawfully imposed local sales or use tax previously paid by the
purchaser or user to the previous statutory or home rule county. The amount of the credit
shall not exceed the sales tax imposed by Larimer County.
The county-wide sales tax will not apply to the sale of food purchased with food stamps.
For purposes of this paragraph, "food" shall have the meaning as provided in 7 U.S.C.
Section 2012(g) as such section exists on October 1, 1987 or is thereafter amended.
The county-wide sales tax will not apply to the sale of food purchased with funds provided
by the special supplemental food program for women, infants and children, 42 U.S.C.
Section 1786. For purposes of this paragraph, "food" shall have the same meaning as
provided in 42 U.S.C. Section 1786 as such section exists on October 1, 1987 or is
thereafter amended.
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d) To the storage, use, or consumption of tangible personal property by the United
States government, or the State of Colorado, or its institutions, or its political
subdivisions in their governmental capacities only or by religious or charitable
corporations in the conduct of their regular religious or charitable functions;
e) To the storage, use, or consumption of tangible personal property by a person
engaged in the business of manufacturing or compounding for sale, profit, or use
any article, substance, or commodity, which tangible personal property enters into
the processing of or becomes an ingredient or component part of the product or
service which is manufactured, compounded, or furnished and the container, label,
or the furnished shipping case thereof;
f) To the storage, use, or consumption of any article of tangible personal property the
sale or use of which has already been subjected to a legally imposed sales or use
tax of another statutory or home rule county equal to or in excess of that imposed
by Larimer County. A credit shall be granted against the use tax imposed by
Larimer County with respect to a person's storage, use, or consumption in Larimer
County of tangible personal property purchased in another statutory or home rule
county. The amount of the credit shall be equal to the tax paid by the person by
reason of the imposition of a sales or use tax of the other statutory or home rule
county on the purchase or use of the property. The amount of the credit shall not
exceed the tax imposed by this proposal;
g) To the storage, use, or consumption of tangible personal property and household
effects acquired outside of Larimer County and brought into it by a non-resident
acquiring residency;
h) To the storage or use of a motor vehicle if the owner is or was, at the time of
purchase, a non-resident of Larimer County and he purchased the vehicle outside
of Larimer County for use outside of Larimer County and actually so used it for a
substantial and primary purpose for which it was acquired and he registered, titled,
and licensed said motor vehicle outside of Larimer County;
i) To the storage, use or consumption of any construction and building materials and
motor and other vehicles on which registration is required if a written contract for
the purchase thereof was entered into prior to the effective date of this use tax
proposal.
j) To the storage, use, or consumption of any construction and building materials
required or made necessary in the performance of any construction contract bid,
let, or entered into any time prior to the effective date of this use tax proposal.
3 LTHAT the one quarter of one percent (025%) use tax provided for herein shall be
applicable to every motor vehicle for which registration is required by the laws of the State
of Colorado, and no registration shall be made of any motor or other vehicle for which
registration is required, and no certificate of title shall be issued for such vehicle by the
Department of Revenue or its authorized agents until any tax due upon the use, storage,
or consumption thereof pursuant to this initiative has been paid. The use tax imposed by
this initiative shall be collected by the authorized agent of the Department of Revenue in
10
"SHALL LARIMER COUNTY TAXES BE INCREASED $6,200,000
ANNUALLY, COMMENCING IN 1996, AND BY WHATEVER
ADDITIONAL AMOUNTS ARE RAISED ANNUALLY THEREAFTER,FOR
OPEN SPACE,NATURAL AREA, WILDLIFE HABITAT, PARK AND TRAIL
PURPOSES, SUCH TAX TO CONSIST OF A ONE QUARTER PERCENT
(1/4%) COUNTY-WIDE SALES AND USE TAX (NOT ON FOOD) TO BE
IMPOSED BEGINNING JANUARY 1, 1996, AND ENDING ON DECEMBER
31, 2003, OF WHICH A MINIMUM OF 55% OF THE REVENUES ARE
PLEDGED TO THE MUNICIPALITIES OF LOVELAND, FORT COLLINS,
ESTES PARK, BERTHOUD, TIMNATH, AND WELLINGTON; AND NOT
MORE THAN 45% OF THE REVENUES ARE PLEDGED TO LARRAER
COUNTY; ALL FOR THE ACQUISITION, PROTECTION, IMPROVEMENT
AND LONG-TERM MAINTENANCE OF OPEN SPACE, NATURAL AREAS,
WILDLIFE HABITAT, PARKS AND TRAILS, ALL AS IS MORE
PARTICULARLY DESCRIBED IN THE HELP PRESERVE OPEN SPACES
INITIATIVE; AND SHALL THE PROCEEDS OF SUCH SALES AND USE
TAXES, AND INVESTMENT INCOME THEREON CONSTITUTE VOTER-
APPROVED REVENUE CHANGES AND BE COLLECTED AND SPENT BY
THE COUNTY WITHOUT REGARD TO ANY EXPENDITURE, REVENUE-
RAISING, OR OTHER LIMITATION CONTAINED WITHIN ARTICLE X,
SECTION 20 OF THE COLORADO CONSTITUTION, AND WITHOUT
LIMITING IN ANY YEAR THE AMOUNT OF OTHER REVENUES THAT
MAY BE COLLECTED AND SPENT BY THE COUNTY?"
YES
NO
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