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HomeMy WebLinkAbout048 - 05/03/2022 - AUTHORIZIING THE FIRST AMENDMENT TO THE SECOND AMENDED AND RESTATED CONSERVATION EASEMENT ON THE WILORDINANCE NO.048, 2022 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE FIRST AMENDMENT TO THE SECOND AMENDED AND RESTATED CONSERVATION EASEMENT ON THE WILLIAMS PROPERTY WHEREAS, in 2005 Glenn and Margaret Hazelhurst ("Hazelhursts") conveyed to the City a conservation easement (the "CE") on a 45-acre parcel of land they owned southwest of the intersection of Taft Hill Road and Trilby Road (the "Property"); and WHEREAS, in 2019 the Hazelhursts wanted to sell, and the City's Natural Areas Department wished to purchase, 40 acres of the Property ("Parcel B") with the Hazelhursts retaining five acres of the Property that had their home on it ("Parcel A") and an access easement across Parcel B; and WHEREAS, at the time, the CE did not allow subdivision of the Property, and in 2019but the City Council approved Ordinance No. 098, 2019 (the 112019 Ordinance"), authorizing execution of a First Amended and Restated Conservation Easement between the City and the Hazelhursts (the "FACE") that would permit subdivision of the Property into Parcel A and Parcel B; and WHEREAS, so that the City would not end up owning both the land and conservation easement on Parcel B, the 2019 Ordinance also authorized the City, after it purchased Parcel B, to assign the conservation easement on Parcel B to Larimer County, which has a long history of partnering with the City on land conservation, and the City would continue to hold the conservation easement on Parcel A; and WHEREAS, because the uses on Parcel A and Parcel B would be different once the City owned Parcel B, and the conservation easement on each Parcel would be managed by different entities, the City, County and Hazelhurst proposed that after the City purchased Parcel B the FACE be further revised to split it into two separate agreements, the Second Amended and Restated Conservation Easements ("SACEs"), one for each Parcel, each tailored to the uses of that Parcel, and the 2019 Ordinance also authorized the SACEs; and WHEREAS, the City and Hazelhursts executed the First Amended Easement, the City purchased Parcel B, the Second Amended Easements were signed, and the City assigned the Second Amended Easement on Parcel B to the County, in 2019; and WHEREAS, the Hazelhursts sold Parcel A to the Williams family in 2021, and in reviewing the Parcel A Second Amended Easement (still held by the City) with the Williamses, City staff discovered an error in the size limitations the conservation easement places on the single- family home on the property, which the parties would like to correct; and WHEREAS, the City and the Williamses have negotiated a draft amendment to the Parcel A SACE that would also do the following: Correct the description of mineral rights ownership on Parcel A; Detail requirements the landowners must meet before allowing third party access to Parcel A to explore for or extract minerals; and Enhance conservation protection by prohibiting sodbusting, the act of removing native vegetation to establish croplands; and WHEREAS a draft of the proposed First Amendment to the Second Amended and Restated Conservation Easement is attached hereto as Exhibit "A" and incorporated herein by reference (the "First Amendment "); and WHEREAS, because the City Council approved the CE and the First and Second Amended and Restated Conservation Easements, the proposed First Amendment also requires City Council approval by ordinance and WHEREAS, at its regular meeting on February 9, 2022, the Land Conservation and Stewardship Board recommended that the City Council approve the First Amendment. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby makes and adopts the determinations and findings contained in the recitals set forth above. Section 2. That the City Council hereby finds that the proposed amendments to the Second Amended and Restated Conservation Easement on Parcel A as provided herein are in the best interests of the City. Section 3. That the Mayor is hereby authorized to execute the First Amendment in substantially the form attached as Exhibit "A", together with such additional terms and conditions as the City Manager, in consultation with the City Attorney, determines are necessary or appropriate to protect the interests of the City. Introduced, considered favorably on first reading, and ordered published this 19th day of April, A.D. 2022 and to be presented for final passage on the 3rd day of May, A.D. 2022. Mayor Pro Tem ATTEST: City Clerk Passed and adopted on final reading on this 3rd day of May, A.D. 2022. �aRr cad ATTEST: City Clerk Q� Mayor Te -3- EXHIBIT A FIRST AMENDMENT TO SECOND AMENDED AND RESTATED DEED OF CONSERVATION EASEMENT HAZELHURST PROPERTY — 5-ACRE PARCEL THIS FIRST AMENDMENT TO THE SECOND AMENDED AND RESTATED DEED OF CONSERVATION EASEMENT (the "First Amendment" or "Deed") is entered into as of 12022 by ROBERT WILLIAMS and COURTNEY WILLIAMS having an address of 2887 West Trilby Road, Fort Collins, CO 80526 ("Grantor"), and THE CITY OF FORT COLLINS, COLORADO, a municipal corporation, having its address at 300 Laporte Avenue., P.O. Box 580, Fort Collins, CO 80522 ("Grantee"). 1. Grantors and Grantee are parties to that Deed of Conservation Easement recorded on October 31, 2005 at Reception No. 20050092426 in the records of the Larimer County, Colorado Clerk and Recorder, as amended by a First Amended and Restated Deed of Conservation Easement dated September 11, 2019 and recorded on September 11, 2019 at Reception No. 20190054677 in the records of the Larimer County, Colorado Clerk and Recorder (the "First Amended Conservation Easement) and as amended by a Second Amended and Restated Deed of Conservation Easement dated September 19, 2019 and recorded on September 20, 2019 at Reception No. 20190057272 in the records of the Larimer County, Colorado Clerk and Recorded (the "Conservation Easement"). The parties wish to amend two parts of Section 4., Reserved Rights, of the Conservation Easement: Section 4. f (1), Improvements, to correct an error and clarify language related to square footages, and Section 4.c. (2), Agriculture, to update language regarding agricultural uses. The parties also want to amend Section 5.e. to correct language regarding mineral rights and their extraction. 2. The parties therefore agree that Section 4 c. (2) Agriculture, Section 4. f. (1) Improvements and Section 5.e. are hereby deleted and replaced with the following language: 4. Reserved Rights. c. Resource Management (2) Agriculture. Grantor reserves the right to use the Property for grazing livestock. Grantor shall conduct all agricultural activities using stewardship and management methods that preserve the natural resources upon which agriculture is based. Long-term stewardship and management goals include preserving soil productivity, maintaining natural stream channels, preventing soil erosion, minimizing invasive species, avoiding unsustainable livestock grazing practices, and minimizing loss of vegetative cover. Sodbusting or removal of native vegetation for purposes of establishing croplands is expressly prohibited. EXHIBIT A f. Improvements. (1) Residential and Non -Residential Improvements. The Property currently contains one residential structure consisting of approximately two thousand two hundred and eighty (2,280) square feet per the Larimer County Assessor records. Grantor may maintain, repair, replace, or reasonably enlarge this residential structure to a size that does not exceed a three thousand (3,000) square -foot footprint in total. Any other improvements existing on the Property as of the Effective Date are also permitted, and Grantor may maintain, repair, replace and reasonably enlarge such improvements in their current locations without Grantee's approval. Typical residential landscaping, which may be non-native but shall not be invasive species, is permitted within 100 feet of actual buildings and native trees, shrubs, grasses, and wildflowers may be planted outside the 100-foot limit area. Grantor reserves the right to construct or place Residential Improvements and Non -Residential Improvements, defined below, and Grantor shall provide prior notice of such construction to Grantee in accordance with Section 7 of this Deed. Once constructed, Grantor may maintain, repair, replace and reasonably enlarge such new improvements in their initially constructed locations without Grantee's approval. Any new Non -Residential Improvement requiring a building permit or exceeding 800 square feet in total floor area and not expressly provided for in the Land Management Plan described in Section 6 below shall require prior written approval by the Grantee, in its reasonable discretion. "Residential Improvements" shall mean covered improvements containing habitable space intended for full- or part-time human habitation, including but not limited to homes, cabins, guest houses, tiny homes, mobile homes, yurts, tepees, and any space attached to any such improvement such as a garage or covered porch. "Non -Residential Improvements" shall mean all other covered or uncovered agricultural and non-residential improvements that are not intended for human habitation, including but not limited to barns, hay storage areas, machine shops, sheds, free-standing garages, well houses, outhouses, gazebos, picnic areas, sport courts, pools, outdoor kitchens, parking areas, and indoor and outdoor riding arenas, fences (subject to the terms of Section 4J of this Deed), corrals, hayracks, cisterns, stock tanks, stock ponds, troughs, fenced hay stacks, livestock feeding stations, hunting blinds, wildlife viewing platforms, sprinklers, water lines, water wells, ditches, information kiosks, trail markers and trash receptacles. The Property currently contains one outbuilding consisting of approximately one thousand two hundred (1,200) square feet. and another building consisting of approximately three hundred (300) square feet. Grantor may construct, place, replace or enlarge Residential and Non -Residential Improvements on the Property subject to the following limitations: i. One single family residence not to exceed a three thousand (3,000) square - foot foo rint. ii. Maximum combined building foolprint square footage for all residential and enclosed non-residential improvements shall not exceed five thousand (5,000) square feet. EXHIBIT A 5. Prohibited and Restricted Uses. e. Mineral Extraction. As of the Effective Date, Grantor does not own any of the coal, oil, gas, hydrocarbons and other minerals of any kind or description (the "Minerals") located on, under, or in the Property or otherwise associated with the Property. This Deed expressly prohibits the mining or extraction of Minerals using any surface mining method. Notwithstanding the foregoing, Grantor and Grantee may permit mineral extraction utilizing methods other than surface mining if the method of extraction has a limited, localized impact on the Property that is not irremediably destructive of the Conservation Values. However, Grantor and Grantee agree that the following provisions shall apply to any such proposed mineral extraction by Grantor or any third party, as applicable: (1) Soil, Sand, Gravel and Rock. Grantor may extract soil, sand, gravel or rock without further permission from Grantee so long as such extraction: (i) is solely for use on the Property for non-commercial purposes; (ii) is in conjunction with activities permitted in this Deed, such as graveling roads and creating stock ponds; (iii) is accomplished in a manner consistent with the preservation and protection of the Conservation Values; (iv) does not result in more than one half -acre of the Property being disturbed by extraction at one time, and uses methods of mining that may have a limited and localized impact on the Property but are not irremediably destructive of the Conservation Values; and (v) is reclaimed within a reasonable time by refilling or some other reasonable reclamation method for all areas disturbed. This provision shall be interpreted in a manner consistent with I.R.C. § 170(h), as amended, and the Treasury Regulations adopted pursuant thereto. (2) Oil and Gas. Grantor is prohibited from conducting or permitting oil and gas exploration and extraction on the Property except to the extent Grantor is legally obligated to do so because of the rights of third -party mineral owners as of the Effective Date and at the time of such proposed mining or removal. (3) Third -Party Mineral Extraction. If a third party owns all, or controls some, of the Minerals, and proposes to extract Minerals from the Property, Grantor shall immediately notify Grantee in writing of any proposal or contact from a third party to explore for or develop the Minerals on the Property. Grantor must consult with the Grantee on negotiation of any surface use agreement or other agreement between the Grantor and any owner or lessee of right to the Minerals, primarily so that the Grantee may help ensure that none of the Property's Conservation Values are substantially diminished, materially impaired, or adversely impacted by the operations, but also so that the Grantee may share in payments to be made by the lessee for its operations on the Property, since any operations by the lessee will impair the Property's Conservation Values that are protected by this Easement, regardless of whether any such payments are due and payable by the lessee pursuant to an agreement or pursuant to an award of damages resulting from the lessee's use of the Property. The Grantee's share of such payments shall be as defined in Section 16 below. Grantor shall not enter into any lease, surface use agreement, no -surface occupancy agreement, or any other instrument related to Minerals associated with the Property (each, a "Mineral Document"), with a third party subsequent to the Effective Date without providing a copy of the same to Grantee prior to its execution by Grantor for Grantee's review and approval. Any Mineral Document shall require that Grantor provide EXHIBIT A notice to Grantee whenever notice is given to Grantor, require the consent of Grantee for any activity not specifically authorized by the instrument, and give Grantee the right, but not the obligation, to object, appeal and intervene in any action in which Grantor has such rights. Any Mineral Document must either (i) prohibit any access to the surface of the Property or (ii) must (a) limit the area(s) of disturbance to a specified area(s); (b) include provisions that ensure that the proposed activities have a limited, localized impact on the Property that is not irremediably destructive of the Conservation Values; and (c) contain a full description of the activities proposed, a description of the extent of disturbance, the location of facilities, equipment, roadways, pipelines and any other infrastructure, the proposed operation restrictions to minimize impacts on the Conservation Values, reclamation measures including and in addition to those required by law, and remedies for damages to the Conservation Values. Any Mineral Document that only permits subsurface access to Minerals but prohibits any access to the surface of the Property shall also prohibit any disturbance to the subjacent and lateral support of the Property, and shall not allow any use that would materially adversely affect the Conservation Values. (4) This Section 5.e shall be interpreted in a manner consistent with I.R.C. § 170(h) and the Treasury Regulations adopted pursuant thereto. 3. The Conservation Easement remains in full force and effect except as modified by this First Amendment. GRANTOR: go an STATE OF COLORADO ) ss COUNTY OF ) Robert Williams Courtney Williams The foregoing instrument was acknowledged before me this day of , 2022, by Robert Williams and Courtney Williams. Witness my hand and official seal. My Commission expires: Notary Public EXHIBIT A GRANTEE: ATTEST: City Clerk Printed Name Approved as to Form: Senior Assistant City Attorney Printed Name STATE OF COLORADO ) ss. COUNTY OF LARIMER CITY OF FORT COLLINS a Colorado municipal corporation Jeni Arndt, Mayor The foregoing instrument was acknowledged before me this day of , 2022, by Jeni Arndt as Mayor of the City of Fort Collins. Witness my hand and official seal My commission expires: Notary Public