HomeMy WebLinkAbout098 - 08/20/2019 - Authorizing the Execution of First and Second Amended and Restated Conservation Easements on the HazDraft 7/16/19
Updated 1/2016
FIRST AMENDED AND RESTATED DEED OF CONSERVATION EASEMENT
HAZELHURST PROPERTY
THIS FIRST AMENDED AND RESTATED DEED OF CONSERVATION
EASEMENT (the “First Amended Conservation Easement” or “Deed”) is made this ____
day of ___________ 2019 (“Effective Date”), by GLEN T. HAZELHURST and
MARGARET E. HAZELHURST having an address of 2887 West Trilby Road, Fort
Collins, CO 80526 (“Grantor”), to CITY OF FORT COLLINS, COLORADO, a
municipal corporation, having its address at 300 Laporte Avenue, Fort Collins, CO 80521
(“Grantee”). (Grantor and Grantee may be individually referred to as a “Party” and
collectively referred to as “Parties.”) The following exhibits are attached and
incorporated:
Exhibit A - Legal Description of Property
Exhibit B - Map of Property [including Building Envelopes and other
areas designated in this Deed]
Exhibit C - Baseline Acknowledgement
Exhibit D - Parcel A Legal Description
Exhibit E - Parcel B Legal Description
Exhibit F - 5 acre Location Map
Exhibit G - Encumbrances
RECITALS
A. Grantor is the sole owner in fee simple of approximately 45 acres of real property
located in Larimer County, Colorado, encumbered by a conservation easement, more
particularly described in Exhibit A and generally depicted on Exhibit B (the
“Property”).
B. The Property is encumbered by a Deed of Conservation Easement granted by
Grantor to Grantee recorded on October 31, 2005 at Reception No. 20050092426 in the
records of Larimer County, Colorado Clerk and Recorder (the “2005 Conservation
Easement”).
C. The Parties wish to restate, amend, supersede and replace the 2005 Conservation
Easement and enter into a new conservation easement in order to update and refine
certain terms within the Easement including but not limited to: permitting subdivision of
the Property into two parcels (as defined below in Paragraph ___), facilitate management
of the Easement on each of said parcels if one of the parcels is conveyed out of common
ownership by treating the parcels separately for purposes of the Easement and allowing
this Deed to be further amended to be split into two separate document, permitting an
access easement across the larger parcel for benefit of the smaller parcel if one of the
EXHIBIT A
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parcels is conveyed out of common ownership, and allow for potential future public
recreation (trail and trailhead).
D. The Property possesses relatively natural habitat, scenic, open space,
educational, and/or recreational values (collectively, “Conservation Values”) of great
importance to Grantor, the people of Fort Collins and the surrounding Larimer County
region and the people of the State of Colorado. In particular, the Property contains the
following characteristics, which are also included within the definition of Conservation
Values:
i. Relatively Natural Habitat § 1.170A-14(d)(3). The Property's
ecological values include a native biotic community of foothills
grasslands that provide food, shelter, and migration corridors for
several wildlife species, including, but not limited to, coyotes, foxes,
mule deer, mountain bluebirds, golden eagles and red- tailed hawks.
The grassland community present on the Property includes a globally
rare plant community. The Property sustains a variety of bird species,
including, but not limited to, horned larks, western meadowlarks, lark
sparrows and grasshopper sparrows. Finally, the protection of the
property contributes to the ecological viability of the adjacent Coyote
Ridge Natural Area.
ii. Open Space§ 1.170A-14(d)(4). The Property qualifies as open space
because it will be preserved for the scenic enjoyment of the general
public and will yield a significant public benefit. More specifically,
preservation of the Property adds to the scenic character of the local rural
landscape in which it lies because a large portion of the Property is
visible to the general public from South Taft Hill Road, a paved, well-
traveled road, which is actively utilized by residents of Fort Collins,
Larimer County, and the State of Colorado. The Property is in the
foreground of a view of the foothills of the Rocky Mountains from South
Taft Hill Road, possesses aesthetic value as open space within the Fort
Collins-Loveland Corridor, and helps provide a buffer of undeveloped
land where there is a foreseeable trend of development in the vicinity of
the Property in the near future, due primarily to the proximity of the
Cities of Fort Collins and Loveland, which City Limits lie
approximately one and one-half miles northeast and three miles
southeast of the Property, respectively. The Property is adjacent to the
Coyote Ridge Natural Area owned and managed by the City of Fort
Collins. This public land includes a trail into the foothills directly west
of the Property. As a result, much of the Property is highly visible from
this public trail. Because of the immediate proximity to public open
space, the Property provides a visual buffer and continuation of the open
space already present to the west. There is a strong likelihood that
development of the Property would lead to or contribute to degradation
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of the scenic and natural character of the area. Preservation of the
Property will add to the scenic character of the local landscape in which
it lies, and will continue to provide an opportunity for the general public
to appreciate the Property's scenic values. In particular, preservation of
the open, undeveloped nature of the near ridgetop will preserve
important scenic qualities of the Property. It should also be noted that
the terms of the Conservation Easement do not permit a degree of
intrusion or future development that would interfere with the essential
scenic quality of the land. As such, preservation of the Property will
continue to provide an opportunity for the general public to appreciate
its scenic values.
iii. Potential future public access for outdoor education and appropriate non-
motorized trail recreation including hiking, wildlife watching, horseback
riding, and mountain biking.
iv. Conservation of this Property is consistent with the following federal,
state, and local governmental policies:
a) C.R.S. § 33-1-101, et seq., provides in relevant part that "it is the
declared policy of the State of Colorado that the wildlife and their
environment are to be protected, preserved, enhanced, and managed for
the use, benefit, and enjoyment of the people of this state and its
visitors."
b) C.R.S. § 33-2-101 to 33-2-106, which provide that “it is the policy of
this state to manage all nongame wildlife, recognizing the private
property rights of individual owners, for human enjoyment and welfare,
for scientific purposes, and to ensure their perpetuation as members of
ecosystems; that species or subspecies of wildlife indigenous to this
state which may be found to be endangered or threatened within the state
should be accorded protection in order to maintain and enhance their
numbers to the extent possible; that this state should assist in the
protection of species or subspecies of wildlife which are deemed to be
endangered or threatened elsewhere.”
c) C.R.S. § 33-10-101 to 33-10-114, which provide that “it is the policy of
the State of Colorado that the natural, scenic, scientific, and outdoor
recreation areas of this state are to be protected, preserved, enhanced,
and managed for the use, benefit, and enjoyment of the people of this
state and visitors of this state.”
d) C.R.S. § 38-30.5-101, et seq., provides for the establishment of
conservation easements to maintain land "in a natural, scenic, or open
condition, or for wildlife habitat, or for agricultural, horticultural,
wetlands, recreational, forest, or other use or condition consistent with
the protection of open land, environmental quality or life-sustaining
ecological diversity, or appropriate to the conservation and preservation
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of buildings, sites, or structures having historical, architectural, or
cultural interest or value."
e) Fort Collins Natural Areas Master Plan (2014) states that “the mission
of the Natural Areas Department is to conserve and enhance lands with
natural resource, agricultural, and scenic values, while providing
meaningful education and appropriate recreation opportunities” and
establishes the conservation focus areas including the Foothills Corridor
and Core Natural Areas which encompass the Property.
E. Grantor intends that the Conservation Values be preserved and protected in
perpetuity, and that the Deed prohibit any uses that would materially adversely affect the
Conservation Values or that otherwise would be inconsistent with the Purpose (defined
below). The Parties acknowledge and agree that uses expressly permitted by this Deed
and Grantor’s current land use patterns on the Property, including without limitation
those relating to grazing existing on the Effective Date (as defined in Section 27, below),
do not materially adversely affect the Conservation Values and are consistent with the
Purpose.
F. By granting this Deed, Grantor further intends to (i) create a conservation
easement interest that binds Grantor as the owner of the Property and also binds future
owners of the Property; and (ii) convey to Grantee the right to preserve and protect the
Conservation Values in perpetuity.
G. Grantee is a political subdivision of the State of Colorado, a home-rule
municipality, and a “qualified organization” under I.R.C. § 170(h) and Treas. Reg. §
1.170A-14(c). The mission of Grantee’s Natural Areas Department is to conserve and
enhance lands with natural resource, agricultural, and scenic values, while providing
meaningful education and appropriate recreation opportunities.
H. Grantee is also a governmental entity as required under C.R.S. § 38-30.5-101, et
seq., which provides for conservation easements to maintain land and water in a natural,
scenic or open condition, for wildlife habitat, or for agricultural and other uses or
conditions consistent with the protection of open land in Colorado.
I. Grantee is certified as license number CE.000000031 by the State of Colorado’s
Division of Real Estate pursuant to C.R.S. § 12-61-724 and 4 C.C.R. 725-4, Chapter 2, to
hold conservation easements for which a tax credit is claimed.
J. Grantee agrees by accepting this Deed to preserve and protect in perpetuity the
Conservation Values for the benefit of this and future generations.
NOW, THEREFORE, pursuant to the laws of the State of Colorado, and in
particular C.R.S. § 38-30.5-101, et seq., and in consideration of the recitals set forth
above, and the mutual covenants, terms, conditions, and restrictions contained in this
Deed, and other good and valuable considerations, the receipt and sufficiency of
which are hereby acknowledged, Grantor voluntarily grants and conveys to Grantee,
and Grantee voluntarily accepts, a conservation easement in gross in perpetuity over the
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Property for the Purpose set forth below and of the nature and character and to the extent
set forth in this Deed. This Deed entirely amends, restates and replaces the 2005
Conservation Easement.
1. Purpose. The purpose of this Deed is to ensure that Grantor preserves and protects
in perpetuity the Conservation Values as they exist upon the Effective Date and as they
may evolve in the future, in accordance with I.R.C. § 170(h), Treas. Reg. § 1.170A-14
and C.R.S. § 38-30.5-101 et seq. (“Purpose”). To effectuate the Purpose, Grantor and
Grantee agree: (i) to allow those uses of the Property that are expressly permitted by this
Deed, subject to any limitations or restrictions stated in this Deed, and those uses of the
Property that do not materially adversely affect the Conservation Values; and (ii) to
prevent any use of the Property that is expressly prohibited by this Deed or will
materially adversely affect the Conservation Values. Notwithstanding the foregoing,
nothing in this Deed is intended to compel a specific use of the Property, such as
agriculture, other than the preservation and protection of the Conservation Values.
2. Baseline Documentation Report. The Parties acknowledge that a written report
dated September 30, 2005 was prepared by LREP, Inc., reviewed and approved, which
documents the Property’s original condition (the “Baseline Report”). Either or both
parties may update the Baseline Report at any time. Both parties agree to provide a copy
of the new report to the other. The Baseline Report contains a natural resources inventory
of the Property and also documents existing improvements on and current uses of the
Property. A copy of the Baseline Report shall be kept on file with each Party and is by
this reference made a part of this Deed. The Parties acknowledge that the Baseline Report
is intended to establish and accurately represent the condition of the Property as of the
Effective Date, and the Parties have acknowledged the same in a signed statement, a copy
of which is attached as Exhibit C. The Parties will use the Baseline Report to assure that
any future changes to the Property are consistent with the Purpose. However, the Parties
agree that the existence of the Baseline Report shall in no way limit the Parties’ ability to
use other pertinent information in resolving any controversy that may arise with respect
to the condition of the Property as of the Effective Date.
3. Rights of Grantee. To accomplish the Purpose, in addition to the rights of the
Grantee described in C.R.S. § 38-30.5-101 et seq., and the rights of Grantee described
elsewhere in this Deed, the Deed conveys the following rights to Grantee:
a. Right to Protect the Conservation Values. To preserve and protect the
Conservation Values in perpetuity by administering, managing and enforcing the terms of
this Deed;
b. Right to Access the Property. To enter upon the Property at reasonable
times to monitor Grantor’s compliance with and, if necessary, to enforce the terms of this
Deed. Such entry shall be made upon prior reasonable notice to Grantor, except in the
event Grantee reasonably determines that immediate entry upon the Property is necessary
to prevent or mitigate a violation of this Deed. In the case where Grantee has determined
that immediate entry is necessary, a reasonable attempt will be made to notify Grantor
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prior to such entry. Grantee shall not unreasonably interfere with Grantor’s use and quiet
enjoyment of the Property when exercising any such rights;
c. Right to Prevent Inconsistent Activities and Require Restoration of
Disturbed Areas. To prevent any activity on or use of the Property that is inconsistent
with the Purpose or the express terms of this Deed and to require the restoration of such
areas or features of the Property that may be damaged by any inconsistent use; and
d. Right of Review. To require Grantor to consult with Grantee regarding the
negotiations of any and all agreements between Grantor and third parties that may impact
or disturb any portion of the surface of the Property, including but not limited to
easement agreements, utility easements, right of way agreements, surface use agreements,
and lease agreements (other than those specifically related to the agricultural and
recreational operations of the Property), and to have the right to approve any such
agreement prior to such agreement being executed. Within 60 days of consulting with
Grantor in writing, Grantee shall provide Grantor with a decision or explain to Grantor
why Grantee reasonably requires no more than an additional 30 days to reach a decision.
Grantee’s approval shall not be unreasonably withheld, but nothing in this Deed is
intended to require Grantee to approve any action or agreement that is inconsistent with
the terms of this Deed.
4. Reserved Rights. Subject to the terms of the Deed, Grantor reserves to Grantor, and
to Grantor’s personal representatives, heirs, successors, and assigns, all rights accruing
from Grantor’s ownership of the Property, including (i) the right to engage in or permit or
invite others to engage in all uses of the Property that are expressly permitted by this
Deed, subject to any limitations or restrictions stated in this Deed, and those uses of the
Property that do not materially adversely affect the Conservation Values; and (ii) to retain
the economic viability of the Property and retain income derived from the Property from
all sources, unless otherwise provided in this Deed, that are consistent with the terms of
this Deed. Grantor may not, however, exercise these retained rights in a manner that is
expressly prohibited by this Deed or that materially adversely affects the Conservation
Values. Without limiting the generality of the foregoing, Grantor reserves the following
specific rights:
a. Right to Convey. Grantor may sell, give, lease, bequeath, devise,
mortgage, or otherwise encumber or convey the Property, subject to the following: (i) any
lease, deed, or other conveyance or encumbrance is subject to this Deed, and any such
document shall specifically incorporate the terms and conditions of this Deed by
reference to this Deed; (ii) any lease or deed or other conveyance document shall
specifically state which reserved rights have been exercised, if at all, and which reserved
rights are specifically allocated to the new owner or lessee; and (iii) notice of any
proposed conveyance or encumbrance as set forth in this Section 4.a shall be subject to
the provisions of Section 19 of this Deed.
b. Subdivision. Grantor may subdivide the property into two tracts – an
approximately 5-acre tract around the existing building envelope shown on Exhibit B (the
“Building Envelope”), hereinafter referred to as Parcel A (and more particularly
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described on Exhibit D) and a tract encompassing the remaining 40+/-acres, hereinafter
referred to as Parcel B (and more particularly described on Exhibit E). Parcel A and
Parcel B are hereafter referred to collectively as “Parcels” or the “Property”. Both
Parcels shall be subject to this Deed. If the Property is so divided, the owner(s) of either
or both Parcels shall be “Grantor” unless otherwise specified herein, shall be Parties to
this Deed, and may also be referred to herein individually as “Owner” or collectively as
“Owners.” Should Grantor sell Parcel B, Grantor may retain an access easement across
Parcel B for access to Parcel A. Any further division or subdivision of title to the
Property, whether by legal or physical process, into two or more parcels of land or partial
or separate interests (including but not limited to condominium interests or the partition
of undivided interests) is prohibited, other than conveyances to public entities for public
roads or other public improvements consistent with this Deed. Nothing in this
subparagraph shall be construed to prohibit joint ownership of each parcel or ownership
of the Property by an entity consisting of more than one member.
c. Resource Management. To accomplish the preservation and protection of
the Conservation Values in perpetuity, Grantor shall operate, manage and maintain the
Property in a manner that promotes the continued viability of the natural resources on the
Property while maintaining any permissible productive uses of the Property, subject to
the provisions of Section 6 of this Deed. Specifically, Grantor agrees to conduct the
activities listed below in a manner consistent with the Purpose. Notwithstanding the
foregoing, Grantor and Grantee recognize that changes in economic conditions, in
agricultural technologies, in accepted farm, ranch and forest management practices, and
in the situation of Grantor may result in an evolution of agricultural, silvicultural, and
other uses of the Property, and such uses are permitted if they are consistent with the
Purpose.
(1) Habitat Management. Grantor may conduct any activities to create,
maintain, restore, or enhance wildlife habitat and native biological communities on the
Property, provided that such activities do not have more than a limited, short-term
adverse effect on the Conservation Values.
(i) Weed/Pest Management. Management of land to
control erosion, growth of weeds and brush, rodents,
pests, insects and pathogens, fire danger and other
threats is permitted consistent with applicable laws and
regulations and in keeping with maintenance of the
Conservation Values of the Property, and in accordance
with the Land Management Plan described in Section 6
below. The Grantor agrees to manage noxious weeds in
accordance with the requirements of Larimer County,
the State of Colorado and other applicable agencies.
(ii) Maintenance/Restoration. Maintenance, stabilization,
replacement, or restoration of existing croplands,
springs, ditches and pastureland, are permitted. Wetland
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pond restoration and creation are permitted if and to the
extent consistent with the Purpose and the terms of this
Deed.
(iii) Prescribed Fire. Igniting outdoor prescribed fires for
agricultural or ecological purposes shall be allowed on
the Property, provided that such activity is conducted in
accordance with accepted prescribed burn practices, all
applicable laws or regulations, and the Land
Management Plan described in Section 6 below.
(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.
(i) Grazing. Livestock grazing is permitted in accordance
with sound stewardship and management practices, and
shall be managed so that the overall condition of the
Property is preserved at its baseline condition and in no
event in less than “fair” condition (as defined by an
applicable U.S. Department of Agriculture - Natural
Resources Conservation Service (NRCS) Technical
Guide). For the purposes of this Deed “livestock” shall
mean cattle, horses, sheep, goats, llamas, alpaca, and
bison. The raising of other livestock and/or game
animals shall not be permitted unless specifically
approved by the Grantee and described in the Land
Management Plan. The Grantor shall comply with and
have responsibility for compliance of the Property with
the Colorado Noxious Weed Act and any other
governmental noxious weed control regulations.
(ii) Other Agricultural Uses. Gardening, beekeeping, and an
orchard, all solely for consumption by the onsite
residents, is allowed within in an area less than one acre
in size.
(3) Timber Management. Trees may be cut to control insects and
disease, to control invasive non-native species, to prevent personal injury and property
damage, to promote forest health, and for fire mitigation purposes including limited and
localized tree and vegetation thinning and the creation of defensible space for permitted
improvements. Collecting of firewood from dead or downed trees, or the use of trees cut
as part of forest health management for firewood is permitted. In addition, trimming
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brush and trees to create a vehicular throughway to accomplish land management is
permitted. Any large-scale fire mitigation activities or commercial timber harvesting on
the Property shall be conducted on a sustainable yield basis and in substantial accordance
with a forest management plan prepared by a competent professional forester. Any large-
scale fire mitigation activities or timber harvesting shall be conducted in a manner that is
consistent with the Purpose. A copy of the forest management plan shall be approved by
Grantee prior to any large-scale fire mitigation activities or commercial timber
harvesting.
d. Recreational Activities. Grantor reserves the right to engage in non-
commercial, non-motorized passive recreational activities, such as horseback riding,
hiking, cross-country skiing, snowshoeing, and other similar low-impact recreational
uses, to be enjoyed solely by each Owner and such Owner’s family and guests on such
Owner’s parcel. Construction of recreational trails and trailhead for public use on Parcel
B is permitted in accordance with 4.f(3) of this Deed.
e. Hunting. No hunting, shooting, or trapping of any animals shall be
permitted on the Property with the following exceptions:
(1) live-trapping of prairie dogs for relocation
pursuant to Section 4.l. herein;
(2) trapping of small mammals for rodent control
within the Building Envelope;
(3) live-trapping for research purposes; and
No public, commercial or recreational use of the Property for hunting, shooting or
trapping of any animals, is allowed.
f. Improvements on Parcel A.
(1) Residential and Non-Residential Improvements. Parcel A currently
contains one residential structure consisting of approximately two thousand one hundred and
twenty-three (2,123) square feet. Grantor may maintain, repair, replace, or reasonably
enlarge this residential structure to a size that does not exceed three thousand (3,000) square
feet in total (excluding unfinished basement areas but including any living space above an
attached or detached garage). Any other improvements existing on Parcel A 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 within the Building
Envelope and native trees, shrubs, grasses, and wildflowers may be planted outside the 100
foot limit area within the Building Envelope. 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
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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, 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 4.f 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.
(2) Building Envelope. The 2005 Easement designated the Building Envelope
consisting of 5 acres in the location now depicted on Exhibit F. The Owner of Parcel A may
construct, place, replace or enlarge Residential and Non-Residential Improvements within
the Building Envelope subject to the following limitations:
(i) One single family residence
(ii) Maximum square footage for single family residence shall
be 3,000 square feet of living space.
(iii) Maximum square footage for any non-residential
building shall not exceed 2,000 square feet in gross floor
area.
(iv) Maximum square footage for all outbuildings shall not
exceed 4,000 square feet.
g. Improvements on Parcel B.
(1) Residential and Non-Residential Improvements. No residential
structures exist on Parcel B and no new residential structures are permitted. Non-Residential
Improvements, defined below, existing as of the Effective Date are permitted, and the
Owner of Parcel B may maintain, repair, replace and reasonably enlarge such
improvements in their current locations without Grantee’s approval. Owner of Parcel B
reserves the right to construct or place additional Non-Residential Improvements, and shall
provide prior notice of such construction to Grantee in accordance with Section 7 of this
Deed. 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. Once constructed, the Owner may maintain, repair, replace and
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reasonably enlarge such new improvements in their initially constructed locations without
Grantee’s approval.
(2) Building Envelope. Owner of Parcel B may designate a building envelope
(“Building Envelope”) of no more than four (4) acres. New Non-Residential Improvements
may be built within the Building Envelope subject to the following limitations:
(i) Improvements will be grouped together to the extent
practicable (Ex: Vault restrooms, storage building, kiosk
and parking lot in one general location.)
(ii) Maximum square footage of a structure or building shall
not exceed 1,000 square feet.
(iii) Maximum height of any structure shall be 15 feet.
(3) “Non-Residential Improvements” shall mean all covered or uncovered
recreational, agricultural and other improvements that are not intended for human
habitation, including but not limited to well houses, outhouses, gazebos, picnic
areas, trailhead parking areas (including vault toilets, trash receptacles, shelters, and
kiosks), loafing sheds, corrals, hayracks, cisterns, stock tanks, stock ponds, troughs,
fenced hay stacks, livestock feeding stations, hunting blinds, and wildlife viewing
platforms. Notwithstanding the foregoing, trail markers, interpretive signs,
information kiosks, site signs, fences (subject to the terms of Section 4.f of this
Deed), sprinklers, water lines, water wells and ditches may be constructed outside of
the Building Envelope.
(4) Setbacks/Requirements for Improvements. In no case shall any
structure be built on Parcel B within one hundred (100) feet of any stream, spring,
or improvement, as identified in the Baseline Documentation or as may
subsequently develop or be determined to exist on the Property, with the
exception of water facilities described in paragraph 4.j below. Except for
structures permitted within the Building Envelope, as shown on Exhibit B, no
structure shall exceed twenty-five (25) feet in height, as measured from the
average elevation of the finished grade to the highest point on a structure, unless
approved by the Grantee. All development and construction must comply with
local, state, and federal requirements.
h. Roads and Trails. Maintenance of existing Roads and Trails is permitted.
“Roads” shall mean any road that is graded, improved or maintained, including seasonal
unimproved roads and two-track roads. “Trails” shall mean any unimproved or improved
path, or paved or unpaved trail constructed or established by human use, but shall not
include game trails established and used by wildlife only. Prior to the construction or
establishment of any Road or Trail, Grantor shall provide notice to Grantee in accordance
with Section 7 of this Deed.
(1) Grantor shall not construct or establish Roads except those existing Roads
depicted on Exhibit B, an access road in an easement across Parcel B as permitted in
paragraph 4.b. above, or such other Roads as Grantee determines are consistent with the
Purpose. Grantor shall not construct or establish any Road wider than necessary to provide
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access for all permitted uses or to meet local codes for width of access to improvements
permitted by this Deed. Grantor shall not pave or otherwise surface a Road with any
impervious surface, except if Grantee determines the paving of the Road is consistent with
the Purpose.
(2) No Owner shall construct or establish any new Trail on the Property unless
Grantee determines a new Trail is consistent with the Purpose. An Owner may construct
approved Trails, and trail head access roads and parking for appropriate, public trail
recreation including hiking, wildlife watching, horseback riding, and mountain biking.
However, trailhead parking may not be constructed on Parcel B before 2024.Trail
recreation shall be non-motorized except as required for compliance with the Americans
with Disabilities Act or other applicable laws.
i. Fences. Existing fences may be maintained, repaired and replaced, and new
fences may be built anywhere on the Property. The location and design of any fencing shall
facilitate and be compatible with the movement of wildlife across the Property and
otherwise consistent with the Purpose.
j. Water Facilities. Maintenance, development and construction of water
facilities such as water wells, livestock watering wells, windmills, springs, water storage
tanks, hydrants, pumps and/or well houses and similar minor agricultural infrastructure
that are solely for use on the Property in conjunction with those activities on the Property
permitted by this Deed, including providing drinking water for users and livestock on the
Property, for use by the Grantor, Grantor’s lessees and/or invitees, are permitted. Any
facilities pursuant to this paragraph shall be sited and constructed or placed so as not to
substantially diminish or impair the Conservation Values of the Property and may be
considered exempt from the setback requirement described in Section 4.g.(4). above.
k. Utility Improvements. Any energy generation or transmission
infrastructure and other utility improvements on the Property that already exist on the
Property pursuant to an easement or other instrument recorded on or prior to the Effective
Date, or later approved by Grantor after notice to Grantee in accordance with Section 7 of
this Deed, may be repaired or replaced with an improvement of similar size and type at
their current locations on the Property without further permission from Grantee. Utility
improvements include but are not limited to: (i) natural gas distribution pipelines, electric
power poles, transformers, and lines; (ii) telephone and communications towers, poles,
and lines; (iii) water wells, domestic water storage and delivery systems; and (v)
renewable energy generation systems including but not limited to wind, solar,
geothermal, or hydroelectric for use on the Property (“Utility Improvements”). Any new
or expanded Utility Improvements must be consistent with the Purpose, and Grantor shall
not enlarge or construct any additional Utility Improvements without Grantee’s approval.
However, Grantor reserves the right to construct Utility Improvements solely to provide
utility services to the improvements permitted by this Deed, provided that no Utility
Improvement exceeds 35 feet in height. Utility Improvements shall be located
underground to the extent practicable.
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(1) Additional Requirements. Prior to the enlargement or construction
of any Utility Improvements on the Property, Grantor shall provide notice to Grantee in
accordance with Section 7 of this Deed. Following the repair, replacement, enlargement
or construction of any Utility Improvements, Grantor shall promptly restore any disturbed
area to a condition consistent with the Purpose.
(2) Alternative Energy.
(i) Wind, solar, and hydroelectric generation facilities that are
primarily for the generation of energy for use on the Property in conjunction with those
activities permitted by this Deed (collectively “Alternative Energy Generation Facilities”)
may be constructed in accordance with this Section 4.k(2). Notwithstanding the
foregoing, no approval of Grantee shall be required if the Alternative Energy Generation
Facilities permitted by this Section 4.k(2) are located within a Building Envelope or if
the facilities are installed in conjunction with the operation of an agricultural
improvement as described in Section 4.f(1) above. Any other Alternative Energy
Generation Facilities may only be constructed with the prior written approval of Grantee
in Grantee’s sole discretion. Without limiting Grantee’s right to withhold such approval
in its sole discretion, factors that Grantee may consider in determining whether to grant
such approval shall include but not be limited to (a) whether the installation and siting
would substantially diminish or impair the Conservation Values, (b) the physical impact
of the proposed facility on the Conservation Values, (c) the feasibility of less impactful
alternatives, and (d) such other factors as Grantee may determine are relevant to the
decision. The construction of Alternative Energy Generation Facilities that are not for use
primarily in conjunction with those activities permitted by this Deed are prohibited
anywhere on the Property. Nothing in this Section 4.k(2) shall be construed as permitting
the construction or establishment of a wind farm or commercial solar energy production
facility.
(ii) Any energy generated by Alternative Energy Generation
Facilities constructed in accordance with this Section 4.k(2) that is incidentally in excess
of Grantor’s consumption may be sold, conveyed, or credited to a provider of retail
electric service to the extent permitted by Colorado law.
(iii) In the event of technological changes or legal changes that
make “expanded” Alternative Energy Generation Facilities more compatible with I.R.C.
Section 170(h) or any applicable successor law, Grantee in its sole discretion may
approve expanded Alternative Energy Generation Facilities that would not substantially
diminish or impair the Conservation Values. For the purposes of this Section 4.k(2)(iii),
the term “expanded” shall mean the development of Alternative Energy Generation
Facilities to an extent that is greater than the level permitted by Sections 4.k(2)(i) and
4.k(2)(ii).
l. Animal Control. Requirements for the control and eradication through live
trapping or fumigation of prairie dogs and other animals on the Property shall be in
accordance with the requirements for said activities set forth in the City Code of the City of
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Fort Collins, Colorado (“City”), as the same would apply within the City whether or not the
Property is within the City limits, except to the extent compliance with the same would
necessarily result in violation of an applicable requirement of Larimer County. Grantor shall
be allowed to control prairie dogs but shall comply with the requirements for the use of
pesticides or otherwise related to the management of prairie dogs set forth in the City Code
of the City of Fort Collins, without regard to whether the Property is within the boundaries
of the City of Fort Collins. Grantor shall consult with Grantee in advance of taking any
action to control, eradicate, or relocate prairie dogs, and any such action shall be consistent
with Grantee's requirements associated with the protection of the Conservation Values of the
Property or the purposes of this Easement. In any event, when using pesticides to control
animal species on the Property, Grantor shall use only EPA-approved pesticides in approved
amounts properly applied to appropriate habitats. Grantee encourages establishment and
retention of prairie dogs on the Property. Prairie dog visual barriers may be installed to
confine the prairie dog colony to a portion of the Property. Planting of native trees, shrubs,
and other native plants to enhance wildlife habitat in appropriate locations on the Property
are encouraged, but will be permitted only with the consent of the Grantee
5. Prohibited and Restricted Uses. Any activity on or use of the Property inconsistent
with the Purpose is prohibited. Without limiting the generality of the foregoing, the
following activities and uses are expressly prohibited or restricted as set forth below:
a. Development Rights. To fulfill the Purpose, Grantor conveys to Grantee
all development rights, except those expressly reserved by Grantor in this Deed, deriving
from, based upon or attributable to the Property in any way, including but not limited to
all present and future rights to divide the Property for the purpose of development into
residential, commercial or industrial lots or units or to receive density or development
credits for the same for use off of the Property (“Grantee’s Development Rights”). The
Parties agree that Grantee’s Development Rights shall be held by Grantee in perpetuity in
order to fulfill the Purpose, and to ensure that such rights are forever released, terminated
and extinguished as to Grantor, and may not be used on or transferred off of the Property
to any other property or used for the purpose of calculating density credits or permissible
lot yield of the Property or any other property.
b. Residential, Non-Residential and Minor Non-Residential Improvements.
Grantor shall not construct or place any Residential Improvements, Non-Residential
Improvements or Minor Non-Residential Improvements on the Property except in
accordance with Section 4.f or 4.g of this Deed.
c. Recreational and Commercial Improvements. Grantor shall not construct
or place any new recreational improvement on the Property, including but not limited to
athletic fields, golf courses or ranges, race tracks, airstrips, helicopter pads, or shooting
ranges. Grantor shall not construct or place any new commercial improvement on the
Property.
d. Removal of Vegetation and Timber Harvesting. Except as otherwise set
forth in this Deed, Grantor shall not remove any vegetation, including shrubs and trees, or
harvest any timber from the Property except in accordance with Section 4.b(3).
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e. Mineral Extraction. As of the Effective Date, Grantor owns all of the coal,
oil, gas, hydrocarbons, sand, soil, gravel, rock 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.11
(2) Oil and Gas. Grantor, or a third party permitted by Grantor, may explore
for and extract oil and gas owned in full or in part by Grantor, provided Grantor ensures
that such activities are conducted in a manner that does not constitute surface mining and
complies with the following conditions:
(i) The exploration for or extraction of oil, gas and other
hydrocarbons is conducted in accordance with a plan (the “Oil and Gas Plan”), prepared
at Grantor’s expense and approved in advance by Grantee. The Oil and Gas Plan shall
describe: (a) the specific activities proposed; (b) the specific land area to be used for well
pad(s), parking, staging, drilling, and any other activities necessary for the extraction of
oil and gas, and the extent of the disturbance of such land area before and after
reclamation; (c) the location of facilities, equipment, roadways, pipelines and any other
infrastructure to be located on the Property; (d) the method of transport of oil or gas
produced from the Property; (e) the method of disposal of water, mining byproducts and
hazardous chemicals produced by or used in the exploration and development of the oil
or gas; (f) the proposed operation restrictions to minimize impacts on the Conservation
Values, including noise and dust mitigation and any timing restrictions necessary to
minimize impacts to wildlife; (g) the reclamation measures necessary to minimize
disturbance to and reclaim the surface of the Property, including restoring soils to the
11 This paragraph is only appropriate where Grantor has reserved limited development and/or road
construction rights. It should be deleted if there is no reserved development on the Property.
16
original contours and replanting and re-establishing native vegetation using specific seed
mixes and processes to ensure successful re-vegetation of the Property, including and in
addition to those measures required by law; and (h) remedies for damages to the
Conservation Values.
(ii) No tank batteries, refineries, secondary production
facilities, compressors, gas processing plants, or other similar facilities may be located on
the Property.
(iii) Areas of surface disturbance shall be mitigated promptly in
accordance with the Oil and Gas Plan.
(iv) Travel for the purpose of oil or gas development shall be
restricted to existing roads or to new roads approved in advance in writing by Grantee as
part of the Oil and Gas Plan.
(v) Well facilities and pipelines shall either be placed
underground, or screened, or concealed from view using existing topography, existing
native vegetation, newly planted but native vegetation, and/or use of natural tone
coloring. Pipelines shall be located along or under existing roadways to the maximum
extent possible.
(vi) Drilling equipment may be located above ground without
concealment or screening, provided that such equipment shall be promptly removed after
drilling is completed.
(vii) Any soil or water contamination due to the exploration for
or extraction of oil or gas must be promptly remediated at the expense of Grantor.
(viii) Any water, mining byproducts or hazardous chemicals
produced by or used in the exploration and development of the oil or gas shall not be
stored or disposed of on the Property.
(ix) Flaring to enhance oil production is prohibited; flaring for
emergencies or operational necessity is permitted.
(x) Grantee shall be released and, to the extent permitted by
law, indemnified and held harmless from any liabilities, damages, or expenses resulting
from any claims, demands, costs or judgments arising out of the exercise of any rights by
Grantor, any lessees or other third parties relating to the exploration for or extraction of
oil, gas or hydrocarbons.
(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 shall not enter
into any lease, surface use agreement, no-surface occupancy agreement, or any other
17
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.12 Any Mineral Document shall require that Grantor provide 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.
f. Trash. The dumping or accumulation of any kind of trash or refuse on the
Property, including but not limited to household trash and hazardous chemicals, is
prohibited. Limited dumping or accumulation of other agriculture-related trash and refuse
produced on the Property is permitted, provided that such dumping does not substantially
diminish or impair the Conservation Values and is confined within a total area less than
one-quarter acre at any given time. This Section 5.f shall not be interpreted to prevent the
storage of agricultural products and by-products on the Property in accordance with all
applicable government laws and regulations.
g. Motorized Vehicles. Motorized vehicles may be used only in conjunction
with activities permitted by this Deed and in a manner that is consistent with the Purpose.
Off-road vehicle courses for snowmobiles, all-terrain vehicles, motorcycles, or other
motorized vehicles are prohibited.
h. Commercial or Industrial Activity.
(1) No industrial uses shall be allowed on the Property. Commercial
uses are allowed, as long as they are conducted in a manner that is consistent with I.R.C.
§ 170(h) and the Purpose. Without limiting other potential commercial uses that meet the
foregoing criteria, the following uses are allowed:
12 If there is an active oil and gas lease on the Property, you will need to consult with Grantee about
drafting certain additional protections.
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(i) Breeding and grazing livestock, such as cattle, horses,
sheep, and similar animals;
(2) The foregoing descriptions of allowed commercial uses
notwithstanding, commercial feed lots and other intensive growth livestock farms, such
as dairy, swine, or poultry farms, are inconsistent with the Purpose and are prohibited.
For purposes of this Deed, "commercial feed lot" is defined as a permanently constructed
confined area or facility within which the Property is not grazed or cropped annually, and
which is used and maintained for purposes of engaging in the commercial business of the
reception and feeding of livestock.
i. Signage or Billboards. No commercial signs, billboards, awnings, or
advertisements shall be displayed or placed on the Property, except for appropriate and
customary ranch or pasture identification signs, “for sale” or “for lease” signs alerting the
public to the availability of the Property for purchase or lease, “no trespassing” signs,
signs regarding the private leasing of the Property for hunting, fishing or other low-
impact recreational uses, and signs informing the public of the status of ownership. Any
such signs shall be located and designed in a manner consistent with the Purpose.
6. Land Management / Management Plan. Grantor and Grantee acknowledge that the
preservation and protection of the Conservation Values as contemplated under this Deed
require careful and thoughtful stewardship of the Property. To facilitate periodic
communication between Grantor and Grantee about management issues that may impact
the Conservation Values, the Property shall be operated and managed in accordance with
a “Management Plan” jointly prepared and agreed upon by Grantor and Grantee on or
before the Effective Date. If the Property is subdivided into two Parcels, each Parcel shall
have its own Management Plan prepared and agreed to by the Grantee and the Owner of
such Parcel. The Parties shall review the Management Plan at least every five years and
update it if either Party determines an update is necessary.
7. Grantor Notice and Grantee Approval. The purpose of requiring Grantor to notify
Grantee prior to undertaking certain permitted activities is to afford Grantee an
opportunity to ensure that the activities in question are designed and carried out in a
manner consistent with the Purpose. Whenever notice is required, Grantor shall notify
Grantee in writing within a reasonable period of time prior to the date Grantor intends to
undertake the activity in question. The notice shall describe the nature, scope, design,
location, timetable, and any other material aspect of the proposed activity in sufficient
detail to permit Grantee to make an informed judgment as to its consistency with the
Purpose. Where Grantee's approval is required, Grantor shall not undertake the requested
activity until Grantor has received Grantee’s approval in writing. Grantee shall grant or
withhold its approval in writing within the time frame described in Paragraph 3d above,
following receipt of Grantor’s written request and sufficient supporting details as
described above. Grantee's approval may be withheld only upon Grantee’s reasonable
determination that the activity as proposed is not consistent with the Purpose or the
express terms of this Deed, unless this Deed provides that approval for a particular
request may be withheld in the sole discretion of the Grantee.
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8. Enforcement. The Grantee shall have the right to prevent and correct or require
correction of violations of the terms of this Deed and the purposes of the Easement. The
Owner of one (1) Parcel will not be held liable for violations located entirely on the other
Parcel, so long as such violations were not caused by the non-occupying Owner. If
Grantee finds what it believes is a violation of this Deed, Grantee shall immediately
notify the Owner(s) in writing of the nature of the alleged violation. Upon receipt of this
written notice, such Owner(s) shall either:
a. Restore the Property to its condition prior to the violation; or
b. Provide a written explanation to Grantee of the reason why the alleged
violation should be permitted, in which event the Parties agree to meet as soon as
possible to resolve their differences. If a resolution cannot be achieved at the meeting, the
Parties may meet with a mutually acceptable mediator to attempt to resolve the dispute.
Owner(s) shall discontinue any activity that could increase or expand the alleged
violation during the mediation process. If the Owner refuses to undertake mediation in a
timely manner or should mediation fail to resolve the dispute, Grantee may, at its
discretion, take appropriate legal action. Notwithstanding the foregoing, when Grantee, in
its sole discretion, determines there is an ongoing or imminent violation that could
irreversibly diminish or impair the Conservation Values, Grantee may, at its sole
discretion, take appropriate legal action without pursuing mediation, including but not
limited to seeking an injunction to stop the alleged violation temporarily or permanently
or to require the Owner(s) to restore the Property to its prior condition.
9. Costs of Enforcement. An Owner shall pay any costs incurred by Grantee in
enforcing the terms of this Deed against such Owner, including without limitation costs
and expenses of suit, attorney fees and any costs of restoration necessitated by such
Owner’s violation of the terms of this Deed. If the deciding body determines that the
Owner has prevailed in any such legal action, then each Party shall pay its own costs and
attorney fees. However, if the deciding body determines that Grantee’s legal action was
frivolous or groundless, Grantee shall pay the Owner’s costs and attorney fees in
defending the legal action.
10. No Waiver or Estoppel. Enforcement of the terms of this Deed shall be in the
Grantee’s discretion. If the Grantee does not exercise, or delays the exercise of, its rights
under this Deed in the event of a violation of any term, such inaction or delay shall not be
deemed or construed to be a waiver by Grantee of such term or of any subsequent
violation of the same or any other term of this Deed or of any of Grantee's rights under
this Deed. Grantor waives any defense of laches, estoppel, or prescription, including the
one-year statute of limitations for commencing an action to enforce the terms of a
building restriction or to compel the removal of any building or improvement because of
the violation of the same under C.R.S. § 38-41-119, et seq.
11. Acts Beyond Grantor’s Control. Nothing contained in this Deed shall be construed
to entitle Grantee to bring any action against Grantor for any injury to or change in the
20
Property resulting from causes beyond Grantor’s control, including without limitation
fire, flood, storm, and earth movement, or from any prudent action taken by Grantor
under emergency conditions to prevent, abate, or mitigate significant injury to the
Property resulting from such causes. Notwithstanding the foregoing, Grantor shall take
reasonable efforts to prevent third parties from performing, and shall not knowingly
allow third parties to perform, any act on or affecting the Property that is inconsistent
with the Purpose.
12. Access. No right of access by the general public to any portion of Parcel A is
conveyed by this Deed.
13. Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs
and liabilities of any kind related to the ownership, operation, upkeep, and maintenance
of the Property, including weed control and eradication and maintaining adequate
comprehensive general liability insurance coverage. Grantor shall keep the Property free
of any liens arising out of any work performed for, materials furnished to, or obligations
incurred by Grantor.
14. Taxes. Grantor shall pay before delinquency all taxes, assessments, fees, and
charges of whatever description levied on or assessed against the Property by competent
authority (collectively “Taxes”), including any Taxes imposed upon, or incurred as a
result of, this Deed, and shall furnish Grantee with satisfactory evidence of payment upon
request.
15. Hold Harmless. To the extent permitted by law, Grantor shall hold harmless,
indemnify, and defend Grantee and its members, directors, officers, employees, agents,
and contractors and the heirs, representatives, successors, and assigns (the “Indemnified
Party”) from and against all liabilities, penalties, costs, losses, damages, expenses,
causes of action, claims, demands, or judgments, including without limitation reasonable
attorneys' fees, arising from or in any way connected with: (1) injury to or the death of
any person, or physical damage to any property, resulting from any act, omission,
condition, or other matter related to or occurring on or about the Property, regardless of
cause, unless due solely to the negligence of the Indemnified Party; (2) the obligations
specified in Section 8; and (3) the presence or release of hazardous or toxic substances
on, under or about the Property. For the purpose of this Section 15, hazardous or toxic
substances shall mean any hazardous or toxic substance that is regulated under any
federal, state or local law. Without limiting the foregoing, nothing in this Deed shall be
construed as giving rise to any right or ability in Grantee, nor shall Grantee have any
right or ability, to exercise physical or managerial control over the day-to-day operations
of the Property, or otherwise to become an operator with respect to the Property within
the meaning of The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, or any similar law or regulation.
16. Real Property Interest. The conservation easement interest created by this Deed
constitutes a real property interest immediately vested in Grantee. The Parties stipulate
that for Parcel B this conservation easement interest (which includes the value of
21
Grantee’s Development Rights) has a fair market value equal to Forty-seven and a half
percent (47.5%) of the full unencumbered fair market value of the Property (the
“Easement Value Percentage”). Both Parties stipulate that for Parcel A this
conservation easement interest has a fair market value equal to ten percent (10%) of the
full unencumbered fair market value of the Property (the “Easement Value
Percentage”). The values at the time of this Deed shall be those values used to calculate
the deduction for federal income tax purposes allowable by reason of this grant, pursuant
to I.R.C. § 170(h), whether or not Grantor claims any deduction for federal income tax
purposes. The Easement Value Percentage shall remain constant.
17. Condemnation or Other Extinguishment. If this Deed is taken, in whole or in part,
by exercise of the power of eminent domain (“Condemnation”), or if circumstances
arise in the future that render the Purpose impossible or impractical to accomplish, this
Deed can only be terminated, whether in whole or in part, by judicial proceedings in a
court of competent jurisdiction. Each Party shall promptly notify the other Party in
writing when it first learns of such circumstances. Grantee shall be entitled to full
compensation for its interest in any portion of this Deed that is terminated as a result of
Condemnation or other proceedings. Grantee’s proceeds shall be an amount at least equal
to the Easement Value Percentage multiplied by the value of the unencumbered fee
simple interest (excluding the value of any improvements) in the portion of the Property
that will no longer be encumbered by this Deed as a result of Condemnation or
termination. Grantor shall not voluntarily accept proceeds equal to less than the full fair
market value of the affected Property unrestricted by this Deed without the approval of
Grantee. Grantee shall use its proceeds in a manner consistent with the conservation
purposes of this Deed. Grantee's remedies described in this Section 17 shall be
cumulative and shall be in addition to any and all remedies now or hereafter existing at
law or in equity, including the right to recover any damages for loss of Conservation
Values as described in C.R.S. § 38-30.5-108.
18. Assignment.
a. This Deed is transferable, but Grantee may assign its rights and
obligations under this Deed only to an organization that:
(1) is a qualified organization at the time of transfer under I.R.C. §
Section 170(h) as amended (or any successor provision then applicable) and the
applicable regulations promulgated thereunder;
(2) is authorized to acquire and hold conservation easements under
Colorado law;
(3) agrees in writing to assume the responsibilities imposed on
Grantee by this Deed; and
b. If Grantee desires to transfer this Deed to a qualified organization having
similar purposes as Grantee but Grantor has refused to approve the transfer, Grantee may
22
seek an order by a court with jurisdiction to transfer this Deed to another qualified
organization having similar purposes that agrees to assume the responsibility imposed on
Grantee by this Deed, provided that Grantor shall have adequate notice of and an
opportunity to participate in the court proceeding leading to the court’s decision on the
matter.
c. Upon compliance with the applicable portions of this Section 18, the
Parties shall record an instrument completing the assignment in the property records of
the county or counties in which the Property is located. Assignment of the Deed shall not
be construed as affecting the Deed’s perpetual duration and shall not affect the Deed’s
priority against any intervening liens, mortgages, easements, or other encumbrances.
19. Subsequent Transfers. Grantor shall notify the Grantee in writing at least thirty
(30) days in advance of the proposed conveyance of any interest in all or any portion of
the Property, including any conveyance under threat of condemnation, and shall
incorporate by reference the terms and conditions of this Deed in any deed or other legal
instrument by which it divests itself of any interest in all or a portion of the Property,
except conveyance of a leasehold interest that is no longer than one year in duration or an
agricultural lease, that is otherwise consistent in all respects with the terms of this Deed.
The failure of Grantor to perform any act required by this Section 19 shall not impair the
validity of this Deed or limit its enforceability in any way.
20. Notices. Any notice, demand, request, consent, approval, or communication that
either Party is required to give to the other in writing shall be either served personally or
delivered by (a) certified mail, with return receipt requested; or (b) a commercial delivery
service that provides proof of delivery, addressed as follows:
To Grantor:
Glen and Margaret Hazelhurst
2887 W. Trilby Road
Fort Collins, CO 80526
To Grantee:
City of Fort Collins
Natural Areas Department
c/o John Stokes, Natural Areas Director
P.O. Box 580
Fort Collins, CO 80522
or to such other address as either Party from time to time shall designate by written notice
to the other.
21. Grantor’s Title Warranty. Grantor warrants that Grantor has good and sufficient
title to the Property and Grantor has access to the Property for the purposes granted or
permitted to Grantee in this Deed, and Grantor promises to defend the same against all
23
claims whatsoever. Grantor’s warranty of title is further subject to the encumbrances set
forth on Exhibit G, attached hereto and incorporated herein by this reference.
22. Subsequent Liens on the Property. No provisions of this Deed shall be construed
as impairing the ability of Grantor to use this Property (or either Owner, if the Property is
divided, to use its respective Parcel) as collateral for subsequent borrowing, provided that
any deed of trust, mortgage or lien arising from such a borrowing shall not encumber less
than all of the Property (or Parcel if applicable), and shall be subordinate to this Deed for
all purposes so that any such instrument expressly shall be deemed to have been recorded
after this Deed and so that any foreclosure of such deed of trust, mortgage or lien shall
not affect any provision of this Deed, including without limitation its perpetual nature,
the payment of proceeds as described in Section 17 above, and the limitation of Section
5.e.
23. Recording. Grantee shall record this Deed in a timely fashion in the official
records of each county or counties in which the Property is situated, and may re-record it
at any time as may be required to preserve its rights in this Deed.
24. Environmental Attributes. Unless otherwise provided in this Deed, Grantor
reserves all Environmental Attributes associated with the Property. “Environmental
Attributes” shall mean any and all tax or other credits, benefits, renewable energy
certificates, emissions reductions, offsets, and allowances (including but not limited to
water, riparian, greenhouse gas, beneficial use, and renewable energy), generated from or
attributable to the conservation, preservation and management of the Property in
accordance with this Deed. Nothing in this Section 24 shall modify the restrictions
imposed by this Deed or otherwise be inconsistent with the Purpose.
25. Tax Benefits. Grantor acknowledges that Grantor is responsible for obtaining legal
and accounting counsel to advise Grantor regarding the applicability of federal or state
tax benefits that might arise from the bargain sale (sale at less than fair market value) or
donation of the Deed. Grantee makes no representation or warranty that Grantor will
receive tax benefits for the bargain sale or donation of the Deed.
26. Deed Correction. The Parties shall cooperate to correct mutually acknowledged
errors in this Deed (and exhibits), including typographical, spelling, or clerical errors.
The Parties shall make such corrections by written agreement.
27. Effective Date. The Effective Date of this Deed shall be the date and year first
written above.
28. General Provisions.
a. Controlling Law. The interpretation and performance of this Deed shall be
governed by the laws of the State of Colorado.
b. Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Deed shall be liberally construed in favor of the grant to effect the
24
Purpose and the policy and purpose of C.R.S. § 38-30.5-101, et seq. If any provision in
this Deed is found to be ambiguous, an interpretation consistent with the Purpose that
would render the provision valid shall be favored over any interpretation that would
render it invalid.
c. Severability. If any provision of this Deed, or the application thereof to
any person or circumstance, is found to be invalid, it shall be deemed severed from this
Deed, and the balance of this Deed shall otherwise remain in full force and effect.
d. Entire Agreement. The Recitals above are a material part of this Deed and
are incorporated into this Deed. This Deed sets forth the entire agreement of the Parties
with respect to the grant of a conservation easement over the Property and supersedes all
prior discussions, negotiations, understandings, or agreements relating to the grant, all of
which are merged in this Deed.
e. Joint Obligation. The obligations imposed upon Grantor and Grantee in
this Deed shall be joint and several if more than one entity or individual holds either
interest at any given time. If there is more than one owner of a Parcel at any time, the
obligations imposed by this Deed upon the Owners shall be joint and several upon each
of the Owners of such Parcel. However, the Owners of one Parcel are not liable for the
obligations of the Owners of the other Parcel.
f. Non-Merger. A merger of this Deed and the fee title to the Property cannot
occur by operation of law. No merger shall be deemed to have occurred hereunder or
under any documents executed in the future affecting this Easement, unless the parties
expressly state that they intend a merger of estates or interests to occur.
g. Successors. The covenants, terms, conditions, and restrictions of this Deed
shall be binding upon, and inure to the benefit of, the Parties and their respective personal
representatives, heirs, successors, and assigns and shall continue as a servitude running in
perpetuity with the Property.
h. Termination of Rights and Obligations. Provided a transfer is permitted by
this Deed, a Party's rights and obligations under the Deed terminate upon transfer of the
Party's interest in the Deed or Property, except that liability for acts or omissions
occurring prior to transfer shall survive transfer.
i. Captions. The captions in this Deed have been inserted solely for
convenience of reference and are not a part of this Deed and shall have no effect upon
construction or interpretation.
j. No Third-Party Beneficiaries. This Deed is entered into by and between
Grantor and Grantee and is solely for the benefit of Grantor and Grantee and their
respective successors and assigns for the purposes set forth in this Deed. The enforcement
of the terms and conditions of this Deed and all rights of action relating to such
enforcement, shall be strictly reserved to the parties. Nothing contained in this Deed shall
give or allow any claim or right of action whatsoever by any other third person, or by the
25
Owner of one Parcel against the Owner of the other Parcel. It is the express intention of
the Parties that any person or entity, other than the Parties, receiving services or benefits
under this Deed shall be deemed an incidental beneficiary only, and that the Owner of
one Parcel is not a beneficiary of the rights or responsibilities of the Owner of the other
Parcel under this Deed.
k. Amendment. If circumstances arise under which an amendment to or
modification of this Deed or any of its exhibits would be appropriate, Grantor and
Grantee may jointly amend this Deed so long as the amendment (i) is consistent with the
Conservation Values and Purpose of this Deed (ii) does not affect the perpetual duration
of the restrictions contained in this Deed, (iii) does not affect the qualifications of this
Deed under any applicable laws, and (iv) complies with Grantee’s procedures and
standards for amendments (as such procedures and standards may be amended from time
to time). If the Property has been divided into two Parcels, the Owner of either Parcel and
the Grantee are free to jointly amend this Deed with respect to such Parcel without the
consent of the Owner of the other Parcel; however, any amendment or modification
affecting the entire Property must be approved in writing by all parties. Alternatively, the
Grantor and Grantee may amend this Deed to create separate Deeds of Conservation
Easement for each Parcel so that each may be managed as a separate Conservation
Easement. Any amendment must be in writing, signed by the Parties, and recorded in the
records of the Clerk and Recorder of the county in which the Property is located. In order
to preserve the Deed’s priority, the Grantee may obtain subordinations of any liens,
mortgages, easements, or other encumbrances, and the Grantee may require a new title
policy. For the purposes of this paragraph, the term “amendment” means any instrument
that purports to alter in any way any provision of or exhibit to this Deed. Nothing in this
Section 28.k shall be construed as requiring Grantee to agree to any particular proposed
amendment.
l. Change of Conditions or Circumstances. A change in the potential
economic value of any use that is prohibited by or inconsistent with this Deed, or a change
in any current or future uses of neighboring properties, shall not constitute a change in
conditions or circumstances that make it impossible or impractical for continued use of the
Property, or any portion thereof, for conservation purposes and shall not constitute grounds
for terminating the Deed in whole or in part. In conveying this Deed, the Parties have
considered the possibility that uses prohibited or restricted by the terms of this Deed may
become more economically valuable than permitted uses, and that neighboring or nearby
properties may in the future be put entirely to such prohibited or restricted uses. It is the
intent of Grantor and Grantee that any such changes shall not be deemed to be
circumstances justifying the termination or extinguishment of this Deed, in whole or in
part. In addition, the inability of Grantor, or Grantor’s heirs, successors, or assigns, to
conduct or implement any or all of the uses permitted under the terms of this Deed, or the
unprofitability of doing so, shall not impair the validity of this Deed or be considered
grounds for its termination or extinguishment, in whole or in part.
m. Authority to Execute. Each Party represents to the other that such Party
has full power and authority to execute, deliver, and perform this Deed, that the
26
individual executing this Deed on behalf of each Party is fully empowered and authorized
to do so, and that this Deed constitutes a valid and legally binding obligation of each
Party enforceable against each Party in accordance with its terms25.
n. Obligations Subject to Annual Appropriation. Any obligations of the
Grantee under this Deed for fiscal years after the year of this Deed are subject to annual
appropriation by Grantee’s governing body, in its sole discretion, of funds sufficient and
intended for such purposes.
o. Good Faith Negotiation/Mediation. Where this Deed requires the consent
of either party, such consent shall not be unreasonably withheld, conditioned, delayed or
denied. Where this Deed specifies that a decision requires the mutual agreement of the
parties, the parties shall be obligated to make best efforts to negotiate in good faith to
reach mutual agreement consistent with the Conservation Values and purposes of the
Easement. In the event that such efforts by the parties fail to result in mutual agreement
through negotiation, the parties agree to attempt to resolve their dispute through
mediation. Either party may commence the mediation process by providing the other
party with written notice setting forth the subject of the dispute, and the solution
requested. Within ten (10) days after the receipt of the notice, the other party shall
deliver a written response to the initiating party’s notice. The parties agree to meet with a
mutually acceptable mediator to attempt to resolve the dispute. The initial mediation
session shall be held within thirty (30) days after the initial notice, unless the selected
mediator cannot accommodate the parties within that time. If the parties cannot agree
upon a mediator, the Grantee will provide the Grantor with a list of at least three
professional mediation organizations in the Fort Collins/Denver area that are not
affiliated with the City of Fort Collins. The Grantor will select an organization from the
list within ten (10) days of receipt of the list, and the selected organization will be asked
to choose a mediator for the parties. The parties agree to share equally the costs and
expenses of the mediation, which shall not include the expenses incurred by each party
for its own legal representation in connection with the mediation. The provisions of this
subparagraph may be enforced by any court of competent jurisdiction, and the party
seeking enforcement shall be entitled to an award of all costs, fees and expenses,
including reasonable attorneys’ fees and other legal costs, to be paid by the party against
whom enforcement is ordered.
p. No Waiver of Governmental Immunity. Anything else in this Deed to the
contrary notwithstanding, no term or condition of this Deed shall be construed or
interpreted as a waiver, either express or implied, of any of the immunities, rights,
benefits or protection of the Colorado Governmental Immunity Act, C.R.S. §24-10-101,
et seq., as amended or as may be amended in the future (including, without limitation,
any amendments to such statute, or under any similar statute which is subsequently
enacted) (“CGIA”), subject to any applicable provisions of the Colorado Constitution and
applicable laws. The Parties acknowledge that liability for claims for injury to persons or
property arising out of the negligence of a government entity, its members, officials,
25 A current Statement of Authority should be recorded prior to recording of this Deed for any Party that is
an artificial entity, e.g. corporation, LLC, LLLC, Trust, etc.
27
agents and employees may be controlled and/or limited by the provisions of the CGIA.
The Parties agree that no provision of this Deed shall be construed in such a manner as to
reduce the extent to which the CGIA limits the liability of any governmental party, its
members, officers, agents and employees.
TO HAVE AND TO HOLD unto Grantee, its successors, and assigns forever.
IN WITNESS WHEREOF, Grantor and Grantee have executed this Deed of
Conservation Easement as of the Effective Date.
GRANTOR:
Glen T. Hazelhurst
Margaret E. Hazelhurst
STATE OF COLORADO )
) ss
COUNTY OF ____________ )
The foregoing instrument was acknowledged before me this day of
____________, 2019, by Glen T. Hazelhurst and Margaret E. Hazelhurst.
Witness my hand and official seal.
My Commission expires:
_______________________________
Notary Public
28
GRANTEE:
CITY OF FORT COLLINS
a Colorado municipal corporation
By:____________________________
, Mayor
ATTEST:
________________________
City Clerk
________________________
Printed Name
Approved as to Form:
_______________________
Senior Assistant City Attorney
________________________
Printed Name
STATE OF COLORADO
) ss.
COUNTY OF LARIMER
The foregoing instrument was acknowledged before me this _____ day of __________,
2019, by ____________________as Mayor of the City of Fort Collins.
Witness my hand and official seal
My commission expires:
______________________________
Notary Public
29
30
City Draft 7/16/19
Updated 1/2016
SECOND AMENDED AND RESTATED DEED OF CONSERVATION EASEMENT
HAZELHURST PROPERTY – 5 ACRE PARCEL
THIS SECOND AMENDED AND RESTATED DEED OF CONSERVATION
EASEMENT (the “Second Amended Conservation Easement” or “Deed”) is made this
____ day of ___________ 2019 (“Effective Date”), by GLEN T. HAZELHURST and
MARGARET E. HAZELHURST having an address of 2887 West Trilby Road, Fort
Collins, CO 80526 (“Grantor”), to CITY OF FORT COLLINS, COLORADO, a
municipal corporation, having its address at 300 Laporte Avenue, Fort Collins, CO 80521
(“Grantee”). (Grantor and Grantee may be individually referred to as a “Party” and
collectively referred to as “Parties.”) The following exhibits are attached and
incorporated:
Exhibit A - Legal Description of Property
Exhibit B - Map of Property
Exhibit C - Baseline Acknowledgement
Exhibit D - Encumbrances
RECITALS
A. Grantor is the sole owner in fee simple of approximately 5 acres of real property
located in Larimer County, Colorado, encumbered by a conservation easement, more
particularly described in Exhibit A and generally depicted on Exhibit B (the
“Property”).
B. The Property is encumbered by a Deed of Conservation Easement granted by
Grantor to Grantee recorded on October 31, 2005 at Reception No. 20050092426 in the
records of Larimer County, Colorado Clerk and Recorder, as amended by a First
Amended and Restated Deed of Conservation Easement dated ______, 2019 and
recorded on _______, 2019 at Reception No. _______________ in the records of the
Larimer County, Colorado Clerk and Recorder (the “First Amended Conservation
Easement”).
C. The First Amended Easement encumbers both the Property and an adjacent 45
acre parcel (“Parcel B”), and permits both subdivision of the Property from Parcel B, and
further amendment of the First Amended Easement to create two separate documents
should the Property and Parcel B be conveyed into separate ownership.
D. The Grantee has purchased Parcel B, and the Parties wish to restate, amend,
supersede and replace the First Amended Conservation Easement and enter into a new
conservation easement with respect to the Property in order to facilitate management of
the Easement on the Property separately from Parcel B.
EXHIBIT B-1
2
E. The Property possesses relatively natural habitat, scenic, open space,
educational, and/or recreational values (collectively, “Conservation Values”) of great
importance to Grantor, the people of Fort Collins and the surrounding Larimer County
region and the people of the State of Colorado. In particular, the Property contains the
following characteristics, which are also included within the definition of Conservation
Values:
i. Relatively Natural Habitat § 1.170A-14(d)(3). The Property's
ecological values include a native biotic community of foothills
grasslands that provide food, shelter, and migration corridors for
several wildlife species, including, but not limited to, coyotes, foxes,
mule deer, mountain bluebirds, golden eagles and red- tailed hawks.
The grassland community present on the Property includes a globally
rare plant community. The Property sustains a variety of bird species,
including, but not limited to, horned larks, western meadowlarks, lark
sparrows and grasshopper sparrows. Finally, the protection of the
property contributes to the ecological viability of the adjacent Coyote
Ridge Natural Area.
ii. Open Space§ 1.170A-14(d)(4). The Property qualifies as open space
because it will be preserved for the scenic enjoyment of the general
public and will yield a significant public benefit. The Property is in the
foreground of a view of the foothills of the Rocky Mountains from South
Taft Hill Road, possesses aesthetic value as open space within the Fort
Collins-Loveland Corridor, and helps provide a buffer of undeveloped
land where there is a foreseeable trend of development in the vicinity of
the Property in the near future, due primarily to the proximity of the
Cities of Fort Collins and Loveland, which City Limits lie
approximately one and one-half miles northeast and three miles
southeast of the Property, respectively. The Property is adjacent to the
Coyote Ridge Natural Area owned and managed by the City of Fort
Collins. This public land includes a trail into the foothills directly west
of the Property. As a result, much of the Property is highly visible from
this public trail. Because of the immediate proximity to public open
space, the Property provides a visual buffer and continuation of the open
space already present to the west. There is a strong likelihood that
development of the Property would lead to or contribute to degradation
of the scenic and natural character of the area. Preservation of the
Property will add to the scenic character of the local landscape in which
it lies, and will continue to provide an opportunity for the general public
to appreciate the Property's scenic values. In particular, preservation of
the open, undeveloped nature of the near ridgetop will preserve
important scenic qualities of the Property. It should also be noted that
the terms of the Conservation Easement do not permit a degree of
intrusion or future development that would interfere with the essential
3
scenic quality of the land. As such, preservation of the Property will
continue to provide an opportunity for the general public to appreciate
its scenic values.
iii. Conservation of this Property is consistent with the following federal,
state, and local governmental policies:
a) C.R.S. § 33-1-101, et seq., provides in relevant part that "it is the
declared policy of the State of Colorado that the wildlife and their
environment are to be protected, preserved, enhanced, and managed for
the use, benefit, and enjoyment of the people of this state and its
visitors."
b) C.R.S. § 33-2-101 to 33-2-106, which provide that “it is the policy of
this state to manage all nongame wildlife, recognizing the private
property rights of individual owners, for human enjoyment and welfare,
for scientific purposes, and to ensure their perpetuation as members of
ecosystems; that species or subspecies of wildlife indigenous to this
state which may be found to be endangered or threatened within the state
should be accorded protection in order to maintain and enhance their
numbers to the extent possible; that this state should assist in the
protection of species or subspecies of wildlife which are deemed to be
endangered or threatened elsewhere.”
c) C.R.S. § 33-10-101 to 33-10-114, which provide that “it is the policy of
the State of Colorado that the natural, scenic, scientific, and outdoor
recreation areas of this state are to be protected, preserved, enhanced,
and managed for the use, benefit, and enjoyment of the people of this
state and visitors of this state.”
d) C.R.S. § 38-30.5-101, et seq., provides for the establishment of
conservation easements to maintain land "in a natural, scenic, or open
condition, or for wildlife habitat, or for agricultural, horticultural,
wetlands, recreational, forest, or other use or condition consistent with
the protection of open land, environmental quality or life-sustaining
ecological diversity, or appropriate to the conservation and preservation
of buildings, sites, or structures having historical, architectural, or
cultural interest or value."
e) Fort Collins Natural Areas Master Plan (2014) states that “the mission
of the Natural Areas Department is to conserve and enhance lands with
natural resource, agricultural, and scenic values, while providing
meaningful education and appropriate recreation opportunities” and
establishes the conservation focus areas including the Foothills Corridor
and Core Natural Areas which encompass the Property.
F. Grantor intends that the Conservation Values be preserved and protected in
perpetuity, and that the Deed prohibit any uses that would materially adversely affect the
Conservation Values or that otherwise would be inconsistent with the Purpose (defined
4
below). The Parties acknowledge and agree that uses expressly permitted by this Deed
and Grantor’s current land use patterns on the Property, including without limitation
those relating to grazing existing on the Effective Date (as defined in Section 27, below),
do not materially adversely affect the Conservation Values and are consistent with the
Purpose.
G. By granting this Deed, Grantor further intends to (i) create a conservation
easement interest that binds Grantor as the owner of the Property and also binds future
owners of the Property; and (ii) convey to Grantee the right to preserve and protect the
Conservation Values in perpetuity.
H. Grantee is a political subdivision of the State of Colorado, a home-rule
municipality, and a “qualified organization” under I.R.C. § 170(h) and Treas. Reg. §
1.170A-14(c). The mission of Grantee’s Natural Areas Department is to conserve and
enhance lands with natural resource, agricultural, and scenic values, while providing
meaningful education and appropriate recreation opportunities.
I. Grantee is also a governmental entity as required under C.R.S. § 38-30.5-101, et
seq., which provides for conservation easements to maintain land and water in a natural,
scenic or open condition, for wildlife habitat, or for agricultural and other uses or
conditions consistent with the protection of open land in Colorado.
J. Grantee is certified as license number CE.000000031 by the State of Colorado’s
Division of Real Estate pursuant to C.R.S. § 12-61-724 and 4 C.C.R. 725-4, Chapter 2, to
hold conservation easements for which a tax credit is claimed.
K. Grantee agrees by accepting this Deed to preserve and protect in perpetuity the
Conservation Values for the benefit of this and future generations.
NOW, THEREFORE, pursuant to the laws of the State of Colorado, and in
particular C.R.S. § 38-30.5-101, et seq., and in consideration of the recitals set forth
above, and the mutual covenants, terms, conditions, and restrictions contained in this
Deed, and other good and valuable considerations, the receipt and sufficiency of
which are hereby acknowledged, Grantor voluntarily grants and conveys to Grantee,
and Grantee voluntarily accepts, a conservation easement in gross in perpetuity over the
Property for the Purpose set forth below and of the nature and character and to the extent
set forth in this Deed. This Deed entirely amends, restates and replaces the First
Amended Conservation Easement with respect to the Property.
1. Purpose. The purpose of this Deed is to ensure that Grantor preserves and protects
in perpetuity the Conservation Values as they exist upon the Effective Date and as they
may evolve in the future, in accordance with I.R.C. § 170(h), Treas. Reg. § 1.170A-14
and C.R.S. § 38-30.5-101 et seq. (“Purpose”). To effectuate the Purpose, Grantor and
Grantee agree: (i) to allow those uses of the Property that are expressly permitted by this
Deed, subject to any limitations or restrictions stated in this Deed, and those uses of the
Property that do not materially adversely affect the Conservation Values; and (ii) to
prevent any use of the Property that is expressly prohibited by this Deed or will
5
materially adversely affect the Conservation Values. Notwithstanding the foregoing,
nothing in this Deed is intended to compel a specific use of the Property, such as
agriculture, other than the preservation and protection of the Conservation Values.
2. Baseline Documentation Report. The Parties acknowledge that a written report
dated September 30, 2005 was prepared by LREP, Inc., reviewed and approved, which
documents the Property’s original condition (the “Baseline Report”). Either or both
parties may update the Baseline Report at any time. Both parties agree to provide a copy
of the new report to the other. The Baseline Report contains a natural resources inventory
of the Property and also documents existing improvements on and current uses of the
Property. A copy of the Baseline Report shall be kept on file with each Party and is by
this reference made a part of this Deed. The Parties acknowledge that the Baseline Report
is intended to establish and accurately represent the condition of the Property as of the
Effective Date, and the Parties have acknowledged the same in a signed statement, a copy
of which is attached as Exhibit C. The Parties will use the Baseline Report to assure that
any future changes to the Property are consistent with the Purpose. However, the Parties
agree that the existence of the Baseline Report shall in no way limit the Parties’ ability to
use other pertinent information in resolving any controversy that may arise with respect
to the condition of the Property as of the Effective Date.
3. Rights of Grantee. To accomplish the Purpose, in addition to the rights of the
Grantee described in C.R.S. § 38-30.5-101 et seq., and the rights of Grantee described
elsewhere in this Deed, the Deed conveys the following rights to Grantee:
a. Right to Protect the Conservation Values. To preserve and protect the
Conservation Values in perpetuity by administering, managing and enforcing the terms of
this Deed;
b. Right to Access the Property. To enter upon the Property at reasonable
times to monitor Grantor’s compliance with and, if necessary, to enforce the terms of this
Deed. Such entry shall be made upon prior reasonable notice to Grantor, except in the
event Grantee reasonably determines that immediate entry upon the Property is necessary
to prevent or mitigate a violation of this Deed. In the case where Grantee has determined
that immediate entry is necessary, a reasonable attempt will be made to notify Grantor
prior to such entry. Grantee shall not unreasonably interfere with Grantor’s use and quiet
enjoyment of the Property when exercising any such rights;
c. Right to Prevent Inconsistent Activities and Require Restoration of
Disturbed Areas. To prevent any activity on or use of the Property that is inconsistent
with the Purpose or the express terms of this Deed and to require the restoration of such
areas or features of the Property that may be damaged by any inconsistent use; and
d. Right of Review. To require Grantor to consult with Grantee regarding the
negotiations of any and all agreements between Grantor and third parties that may impact
or disturb any portion of the surface of the Property, including but not limited to
easement agreements, utility easements, right of way agreements, surface use agreements,
and lease agreements (other than those specifically related to the agricultural and
6
recreational operations of the Property), and to have the right to approve any such
agreement prior to such agreement being executed. Within 60 days of consulting with
Grantor in writing, Grantee shall provide Grantor with a decision or explain to Grantor
why Grantee reasonably requires no more than an additional 30 days to reach a decision.
Grantee’s approval shall not be unreasonably withheld, but nothing in this Deed is
intended to require Grantee to approve any action or agreement that is inconsistent with
the terms of this Deed.
4. Reserved Rights. Subject to the terms of the Deed, Grantor reserves to Grantor, and
to Grantor’s personal representatives, heirs, successors, and assigns, all rights accruing
from Grantor’s ownership of the Property, including (i) the right to engage in or permit or
invite others to engage in all uses of the Property that are expressly permitted by this
Deed, subject to any limitations or restrictions stated in this Deed, and those uses of the
Property that do not materially adversely affect the Conservation Values; and (ii) to retain
the economic viability of the Property and retain income derived from the Property from
all sources, unless otherwise provided in this Deed, that are consistent with the terms of
this Deed. Grantor may not, however, exercise these retained rights in a manner that is
expressly prohibited by this Deed or that materially adversely affects the Conservation
Values. Without limiting the generality of the foregoing, Grantor reserves the following
specific rights:
a. Right to Convey. Grantor may sell, give, lease, bequeath, devise,
mortgage, or otherwise encumber or convey the Property, subject to the following: (i) any
lease, deed, or other conveyance or encumbrance is subject to this Deed, and any such
document shall specifically incorporate the terms and conditions of this Deed by
reference to this Deed; (ii) any lease or deed or other conveyance document shall
specifically state which reserved rights have been exercised, if at all, and which reserved
rights are specifically allocated to the new owner or lessee; and (iii) notice of any
proposed conveyance or encumbrance as set forth in this Section 4.a shall be subject to
the provisions of Section 19 of this Deed.
b. Subdivision. Any division or subdivision of title to the Property, whether
by legal or physical process, into two or more parcels of land or partial or separate
interests (including but not limited to condominium interests or the partition of undivided
interests) is prohibited, other than conveyances to public entities for public roads or other
public improvements consistent with this Deed. Nothing in this subparagraph shall be
construed to prohibit ownership of the Property by an entity consisting of more than one
member.
c. Resource Management. To accomplish the preservation and protection of
the Conservation Values in perpetuity, Grantor shall operate, manage and maintain the
Property in a manner that promotes the continued viability of the natural resources on the
Property while maintaining any permissible productive uses of the Property, subject to
the provisions of Section 6 of this Deed. Specifically, Grantor agrees to conduct the
activities listed below in a manner consistent with the Purpose. Notwithstanding the
foregoing, Grantor and Grantee recognize that changes in economic conditions, in
7
agricultural technologies, in accepted farm, ranch and forest management practices, and
in the situation of Grantor may result in an evolution of agricultural, silvicultural, and
other uses of the Property, and such uses are permitted if they are consistent with the
Purpose.
(1) Habitat Management. Grantor may conduct any activities to create,
maintain, restore, or enhance wildlife habitat and native biological communities on the
Property, provided that such activities do not have more than a limited, short-term
adverse effect on the Conservation Values.
(i) Weed/Pest Management. Management of land to
control erosion, growth of weeds and brush, rodents,
pests, insects and pathogens, fire danger and other
threats is permitted consistent with applicable laws and
regulations and in keeping with maintenance of the
Conservation Values of the Property, and in accordance
with the Land Management Plan described in Section 6
below. The Grantor agrees to manage noxious weeds in
accordance with the requirements of Larimer County,
the State of Colorado and other applicable agencies.
(ii) Maintenance/Restoration. Maintenance, stabilization,
replacement, or restoration of existing croplands,
springs, ditches and pastureland, are permitted. Wetland
pond restoration and creation are permitted if and to the
extent consistent with the Purpose and the terms of this
Deed.
(iii) Prescribed Fire. Igniting outdoor prescribed fires for
agricultural or ecological purposes shall be allowed on
the Property, provided that such activity is conducted in
accordance with accepted prescribed burn practices, all
applicable laws or regulations, and the Land
Management Plan described in Section 6 below.
(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.
(i) Grazing. Livestock grazing is permitted in accordance
with sound stewardship and management practices, and
shall be managed so that the overall condition of the
Property is preserved at its baseline condition and in no
8
event in less than “fair” condition (as defined by an
applicable U.S. Department of Agriculture - Natural
Resources Conservation Service (NRCS) Technical
Guide). For the purposes of this Deed “livestock” shall
mean cattle, horses, sheep, goats, llamas, alpaca, and
bison. The raising of other livestock and/or game
animals shall not be permitted unless specifically
approved by the Grantee and described in the Land
Management Plan. The Grantor shall comply with and
have responsibility for compliance of the Property with
the Colorado Noxious Weed Act and any other
governmental noxious weed control regulations.
(ii) Other Agricultural Uses. Gardening, beekeeping, and an
orchard, all solely for consumption by the onsite
residents, is allowed within in an area less than one acre
in size.
(3) Timber Management. Trees may be cut to control insects and
disease, to control invasive non-native species, to prevent personal injury and property
damage, to promote forest health, and for fire mitigation purposes including limited and
localized tree and vegetation thinning and the creation of defensible space for permitted
improvements. Collecting of firewood from dead or downed trees, or the use of trees cut
as part of forest health management for firewood is permitted. In addition, trimming
brush and trees to create a vehicular throughway to accomplish land management is
permitted. Any large-scale fire mitigation activities or commercial timber harvesting on
the Property shall be conducted on a sustainable yield basis and in substantial accordance
with a forest management plan prepared by a competent professional forester. Any large-
scale fire mitigation activities or timber harvesting shall be conducted in a manner that is
consistent with the Purpose. A copy of the forest management plan shall be approved by
Grantee prior to any large-scale fire mitigation activities or commercial timber
harvesting.
d. Recreational Activities. Grantor reserves the right to engage in non-
commercial, non-motorized passive recreational activities, such as horseback riding,
hiking, cross-country skiing, snowshoeing, and other similar low-impact recreational
uses, to be enjoyed solely by Grantor and Grantor’s family and guests.
e. Hunting. No hunting, shooting, or trapping of any animals shall be
permitted on the Property with the following exceptions:
(1) live-trapping of prairie dogs for relocation
pursuant to Section 4.l. herein;
(2) trapping of small mammals for rodent control
within the Building Envelope;
(3) live-trapping for research purposes.
9
No public, commercial or recreational use of the Property for hunting, shooting or
trapping of any animals, or for any other recreational use, is allowed.
f. Improvements.
(1) Residential and Non-Residential Improvements. The Property
currently contains one residential structure consisting of approximately two thousand one
hundred and twenty-three (2,123) square feet. Grantor may maintain, repair, replace, or
reasonably enlarge this residential structure to a size that does not exceed three thousand
(3,000) square feet in total (excluding unfinished basement areas but including any living
space above an attached or detached garage). 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 within the Building
Envelope and native trees, shrubs, grasses, and wildflowers may be planted outside the 100
foot limit area within the Building Envelope. 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, 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 4.f 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.
may construct, place, replace or enlarge Residential and Non-Residential Improvements on
the Property subject to the following limitations:
(i) One single family residence
(ii) Maximum square footage for single family residence shall
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be 3,000 square feet of living space.
(iii) Maximum square footage for any non-residential
building shall not exceed 2,000 square feet in gross floor
area.
(iv) Maximum square footage for all outbuildings shall not
exceed 4,000 square feet.
g. Roads and Trails. Maintenance of existing Roads and Trails is permitted.
“Roads” shall mean any road that is graded, improved or maintained, including seasonal
unimproved roads and two-track roads. “Trails” shall mean any unimproved or improved
path, or paved or unpaved trail constructed or established by human use, but shall not
include game trails established and used by wildlife only. Prior to the construction or
establishment of any Road or Trail, Grantor shall provide notice to Grantee in accordance
with Section 7 of this Deed.
(1) Grantor shall not construct or establish Roads except those existing Roads
depicted on Exhibit B, or such other Roads as Grantee determines are consistent with the
Purpose. Grantor shall not construct or establish any Road wider than necessary to provide
access for all permitted uses or to meet local codes for width of access to improvements
permitted by this Deed. Grantor shall not pave or otherwise surface a Road with any
impervious surface, except if Grantee determines the paving of the Road is consistent with
the Purpose.
(2) Grantor shall not construct or establish any new Trail on the Property unless
Grantee determines a new Trail is consistent with the Purpose. Grantor may construct
approved Trails, and trail head access roads and parking for appropriate, public trail
recreation including hiking, wildlife watching, horseback riding, and mountain biking.
Trail recreation shall be non-motorized except as required for compliance with the
Americans with Disabilities Act or other applicable laws.
h. Fences. Existing fences may be maintained, repaired and replaced, and new
fences may be built anywhere on the Property. The location and design of any fencing shall
facilitate and be compatible with the movement of wildlife across the Property and
otherwise consistent with the Purpose.
i. Water Facilities. Maintenance, development and construction of water
facilities such as water wells, livestock watering wells, windmills, springs, water storage
tanks, hydrants, pumps and/or well houses and similar minor agricultural infrastructure
that are solely for use on the Property in conjunction with those activities on the Property
permitted by this Deed, including providing drinking water for users and livestock on the
Property, for use by the Grantor, Grantor’s lessees and/or invitees, are permitted. Any
facilities pursuant to this paragraph shall be sited and constructed or placed so as not to
substantially diminish or impair the Conservation Values of the.
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j. Utility Improvements. Any energy generation or transmission
infrastructure and other utility improvements on the Property that already exist on the
Property pursuant to an easement or other instrument recorded on or prior to the Effective
Date, or later approved by Grantor after notice to Grantee in accordance with Section 7 of
this Deed, may be repaired or replaced with an improvement of similar size and type at
their current locations on the Property without further permission from Grantee. Utility
improvements include but are not limited to: (i) natural gas distribution pipelines, electric
power poles, transformers, and lines; (ii) telephone and communications towers, poles,
and lines; (iii) water wells, domestic water storage and delivery systems; and (v)
renewable energy generation systems including but not limited to wind, solar,
geothermal, or hydroelectric for use on the Property (“Utility Improvements”). Any new
or expanded Utility Improvements must be consistent with the Purpose, and Grantor shall
not enlarge or construct any additional Utility Improvements without Grantee’s approval.
However, Grantor reserves the right to construct Utility Improvements solely to provide
utility services to the improvements permitted by this Deed, provided that no Utility
Improvement exceeds 35 feet in height. Utility Improvements shall be located
underground to the extent practicable.
(1) Additional Requirements. Prior to the enlargement or construction
of any Utility Improvements on the Property, Grantor shall provide notice to Grantee in
accordance with Section 7 of this Deed. Following the repair, replacement, enlargement
or construction of any Utility Improvements, Grantor shall promptly restore any disturbed
area to a condition consistent with the Purpose.
(2) Alternative Energy.
(i) Wind, solar, and hydroelectric generation facilities that are
primarily for the generation of energy for use on the Property in conjunction with those
activities permitted by this Deed (collectively “Alternative Energy Generation Facilities”)
may be constructed in accordance with this Section 4.j(2). Any other Alternative Energy
Generation Facilities may only be constructed with the prior written approval of Grantee
in Grantee’s sole discretion. Without limiting Grantee’s right to withhold such approval
in its sole discretion, factors that Grantee may consider in determining whether to grant
such approval shall include but not be limited to (a) whether the installation and siting
would substantially diminish or impair the Conservation Values, (b) the physical impact
of the proposed facility on the Conservation Values, (c) the feasibility of less impactful
alternatives, and (d) such other factors as Grantee may determine are relevant to the
decision. The construction of Alternative Energy Generation Facilities that are not for use
primarily in conjunction with those activities permitted by this Deed are prohibited
anywhere on the Property. Nothing in this Section 4.j(2) shall be construed as permitting
the construction or establishment of a wind farm or commercial solar energy production
facility.
(ii) Any energy generated by Alternative Energy Generation
Facilities constructed in accordance with this Section 4.j(2) that is incidentally in excess
12
of Grantor’s consumption may be sold, conveyed, or credited to a provider of retail
electric service to the extent permitted by Colorado law.
(iii) In the event of technological changes or legal changes that
make “expanded” Alternative Energy Generation Facilities more compatible with I.R.C.
Section 170(h) or any applicable successor law, Grantee in its sole discretion may
approve expanded Alternative Energy Generation Facilities that would not substantially
diminish or impair the Conservation Values. For the purposes of this Section 4.j(2)(iii),
the term “expanded” shall mean the development of Alternative Energy Generation
Facilities to an extent that is greater than the level permitted by Sections 4.j(2)(i) and
4.j(2)(ii).
l. Animal Control. Requirements for the control and eradication through live
trapping or fumigation of prairie dogs and other animals on the Property shall be in
accordance with the requirements for said activities set forth in the City Code of the City of
Fort Collins, Colorado (“City”), as the same would apply within the City whether or not the
Property is within the City limits, except to the extent compliance with the same would
necessarily result in violation of an applicable requirement of Larimer County. Grantor shall
be allowed to control prairie dogs but shall comply with the requirements for the use of
pesticides or otherwise related to the management of prairie dogs set forth in the City Code
of the City of Fort Collins, without regard to whether the Property is within the boundaries
of the City of Fort Collins. Grantor shall consult with Grantee in advance of taking any
action to control, eradicate, or relocate prairie dogs, and any such action shall be consistent
with Grantee's requirements associated with the protection of the Conservation Values of the
Property or the purposes of this Easement. In any event, when using pesticides to control
animal species on the Property, Grantor shall use only EPA-approved pesticides in approved
amounts properly applied to appropriate habitats. Grantee encourages establishment and
retention of prairie dogs on the Property. Prairie dog visual barriers may be installed to
confine the prairie dog colony to a portion of the Property. Planting of native trees, shrubs,
and other native plants to enhance wildlife habitat in appropriate locations on the Property
are encouraged, but will be permitted only with the consent of the Grantee
5. Prohibited and Restricted Uses. Any activity on or use of the Property inconsistent
with the Purpose is prohibited. Without limiting the generality of the foregoing, the
following activities and uses are expressly prohibited or restricted as set forth below:
a. Development Rights. To fulfill the Purpose, Grantor conveys to Grantee
all development rights, except those expressly reserved by Grantor in this Deed, deriving
from, based upon or attributable to the Property in any way, including but not limited to
all present and future rights to divide the Property for the purpose of development into
residential, commercial or industrial lots or units or to receive density or development
credits for the same for use off of the Property (“Grantee’s Development Rights”). The
Parties agree that Grantee’s Development Rights shall be held by Grantee in perpetuity in
order to fulfill the Purpose, and to ensure that such rights are forever released, terminated
and extinguished as to Grantor, and may not be used on or transferred off of the Property
to any other property or used for the purpose of calculating density credits or permissible
13
lot yield of the Property or any other property.
b. Residential, Non-Residential and Minor Non-Residential Improvements.
Grantor shall not construct or place any Residential Improvements, Non-Residential
Improvements or Minor Non-Residential Improvements on the Property except in
accordance with Section 4.f of this Deed.
c. Recreational and Commercial Improvements. Grantor shall not construct
or place any new recreational improvement on the Property, including but not limited to
athletic fields, golf courses or ranges, race tracks, airstrips, helicopter pads, or shooting
ranges. Grantor shall not construct or place any new commercial improvement on the
Property.
d. Removal of Vegetation and Timber Harvesting. Except as otherwise set
forth in this Deed, Grantor shall not remove any vegetation, including shrubs and trees, or
harvest any timber from the Property except in accordance with Section 4.b(3).
e. Mineral Extraction. As of the Effective Date, Grantor owns all of the coal,
oil, gas, hydrocarbons, sand, soil, gravel, rock 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.11
(2) Oil and Gas. Grantor, or a third party permitted by Grantor, may explore
for and extract oil and gas owned in full or in part by Grantor, provided Grantor ensures
11 This paragraph is only appropriate where Grantor has reserved limited development and/or r oad
construction rights. It should be deleted if there is no reserved development on the Property.
14
that such activities are conducted in a manner that does not constitute surface mining and
complies with the following conditions:
(i) The exploration for or extraction of oil, gas and other
hydrocarbons is conducted in accordance with a plan (the “Oil and Gas Plan”), prepared
at Grantor’s expense and approved in advance by Grantee. The Oil and Gas Plan shall
describe: (a) the specific activities proposed; (b) the specific land area to be used for well
pad(s), parking, staging, drilling, and any other activities necessary for the extraction of
oil and gas, and the extent of the disturbance of such land area before and after
reclamation; (c) the location of facilities, equipment, roadways, pipelines and any other
infrastructure to be located on the Property; (d) the method of transport of oil or gas
produced from the Property; (e) the method of disposal of water, mining byproducts and
hazardous chemicals produced by or used in the exploration and development of the oil
or gas; (f) the proposed operation restrictions to minimize impacts on the Conservation
Values, including noise and dust mitigation and any timing restrictions necessary to
minimize impacts to wildlife; (g) the reclamation measures necessary to minimize
disturbance to and reclaim the surface of the Property, including restoring soils to the
original contours and replanting and re-establishing native vegetation using specific seed
mixes and processes to ensure successful re-vegetation of the Property, including and in
addition to those measures required by law; and (h) remedies for damages to the
Conservation Values.
(ii) No tank batteries, refineries, secondary production
facilities, compressors, gas processing plants, or other similar facilities may be located on
the Property.
(iii) Areas of surface disturbance shall be mitigated promptly in
accordance with the Oil and Gas Plan.
(iv) Travel for the purpose of oil or gas development shall be
restricted to existing roads or to new roads approved in advance in writing by Grantee as
part of the Oil and Gas Plan.
(v) Well facilities and pipelines shall either be placed
underground, or screened, or concealed from view using existing topography, existing
native vegetation, newly planted but native vegetation, and/or use of natural tone
coloring. Pipelines shall be located along or under existing roadways to the maximum
extent possible.
(vi) Drilling equipment may be located above ground without
concealment or screening, provided that such equipment shall be promptly removed after
drilling is completed.
(vii) Any soil or water contamination due to the exploration for
or extraction of oil or gas must be promptly remediated at the expense of Grantor.
15
(viii) Any water, mining byproducts or hazardous chemicals
produced by or used in the exploration and development of the oil or gas shall not be
stored or disposed of on the Property.
(ix) Flaring to enhance oil production is prohibited; flaring for
emergencies or operational necessity is permitted.
(x) Grantee shall be released and, to the extent permitted by
law, indemnified and held harmless from any liabilities, damages, or expenses resulting
from any claims, demands, costs or judgments arising out of the exercise of any rights by
Grantor, any lessees or other third parties relating to the exploration for or extraction of
oil, gas or hydrocarbons.
(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 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.12 Any Mineral Document shall require that Grantor provide 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.
f. Trash. The dumping or accumulation of any kind of trash or refuse on the
Property, including but not limited to household trash and hazardous chemicals, is
prohibited. Limited dumping or accumulation of other agriculture-related trash and refuse
12 If there is an active oil and gas lease on the Property, you will need to consult with Grantee about
drafting certain additional protections.
16
produced on the Property is permitted, provided that such dumping does not substantially
diminish or impair the Conservation Values and is confined within a total area less than
one-quarter acre at any given time. This Section 5.f shall not be interpreted to prevent the
storage of agricultural products and by-products on the Property in accordance with all
applicable government laws and regulations.
g. Motorized Vehicles. Motorized vehicles may be used only in conjunction
with activities permitted by this Deed and in a manner that is consistent with the Purpose.
Off-road vehicle courses for snowmobiles, all-terrain vehicles, motorcycles, or other
motorized vehicles are prohibited.
h. Commercial or Industrial Activity.
(1) No industrial uses shall be allowed on the Property. Commercial
uses are allowed, as long as they are conducted in a manner that is consistent with I.R.C.
§ 170(h) and the Purpose. Without limiting other potential commercial uses that meet the
foregoing criteria, the following uses are allowed:
(i) Breeding and grazing livestock, such as cattle, horses,
sheep, and similar animals;
(2) The foregoing descriptions of allowed commercial uses
notwithstanding, commercial feed lots and other intensive growth livestock farms, such
as dairy, swine, or poultry farms, are inconsistent with the Purpose and are prohibited.
For purposes of this Deed, "commercial feed lot" is defined as a permanently constructed
confined area or facility within which the Property is not grazed or cropped annually, and
which is used and maintained for purposes of engaging in the commercial business of the
reception and feeding of livestock.
i. Signage or Billboards. No commercial signs, billboards, awnings, or
advertisements shall be displayed or placed on the Property, except for appropriate and
customary ranch or pasture identification signs, “for sale” or “for lease” signs alerting the
public to the availability of the Property for purchase or lease, “no trespassing” signs,
signs regarding the private leasing of the Property for hunting, fishing or other low-
impact recreational uses, and signs informing the public of the status of ownership. Any
such signs shall be located and designed in a manner consistent with the Purpose.
6. Land Management / Management Plan. Grantor and Grantee acknowledge that the
preservation and protection of the Conservation Values as contemplated under this Deed
require careful and thoughtful stewardship of the Property. To facilitate periodic
communication between Grantor and Grantee about management issues that may impact
the Conservation Values, the Property shall be operated and managed in accordance with
a “Management Plan” jointly prepared and agreed upon by Grantor and Grantee on or
before the Effective Date. The Parties shall review the Management Plan at least every
five years and update it if either Party determines an update is necessary.
17
7. Grantor Notice and Grantee Approval. The purpose of requiring Grantor to notify
Grantee prior to undertaking certain permitted activities is to afford Grantee an
opportunity to ensure that the activities in question are designed and carried out in a
manner consistent with the Purpose. Whenever notice is required, Grantor shall notify
Grantee in writing within a reasonable period of time prior to the date Grantor intends to
undertake the activity in question. The notice shall describe the nature, scope, design,
location, timetable, and any other material aspect of the proposed activity in sufficient
detail to permit Grantee to make an informed judgment as to its consistency with the
Purpose. Where Grantee's approval is required, Grantor shall not undertake the requested
activity until Grantor has received Grantee’s approval in writing. Grantee shall grant or
withhold its approval in writing within the time frame described in Paragraph 3d above,
following receipt of Grantor’s written request and sufficient supporting details as
described above. Grantee's approval may be withheld only upon Grantee’s reasonable
determination that the activity as proposed is not consistent with the Purpose or the
express terms of this Deed, unless this Deed provides that approval for a particular
request may be withheld in the sole discretion of the Grantee.
8. Enforcement. The Grantee shall have the right to prevent and correct or require
correction of violations of the terms of this Deed and the purposes of the Easement. If
Grantee finds what it believes is a violation of this Deed, Grantee shall immediately
notify the Grantor in writing of the nature of the alleged violation. Upon receipt of this
written notice, Grantor shall either:
a. Restore the Property to its condition prior to the violation; or
b. Provide a written explanation to Grantee of the reason why the alleged
violation should be permitted, in which event the Parties agree to meet as soon as
possible to resolve their differences. If a resolution cannot be achieved at the meeting, the
Parties may meet with a mutually acceptable mediator to attempt to resolve the dispute.
Grantor shall discontinue any activity that could increase or expand the alleged violation
during the mediation process. If the Grantor refuses to undertake mediation in a timely
manner or should mediation fail to resolve the dispute, Grantee may, at its discretion,
take appropriate legal action. Notwithstanding the foregoing, when Grantee, in its sole
discretion, determines there is an ongoing or imminent violation that could irreversibly
diminish or impair the Conservation Values, Grantee may, at its sole discretion, take
appropriate legal action without pursuing mediation, including but not limited to seeking
an injunction to stop the alleged violation temporarily or permanently or to require the
Grantor to restore the Property to its prior condition.
9. Costs of Enforcement. Grantor shall pay any costs incurred by Grantee in enforcing
the terms of this Deed against Grantor, including without limitation costs and expenses of
suit, attorney fees and any costs of restoration necessitated by Grantor’s violation of the
terms of this Deed. If the deciding body determines that the Grantor has prevailed in any
such legal action, then each Party shall pay its own costs and attorney fees. However, if
the deciding body determines that Grantee’s legal action was frivolous or groundless,
Grantee shall pay the Grantor’s costs and attorney fees in defending the legal action.
18
10. No Waiver or Estoppel. Enforcement of the terms of this Deed shall be in the
Grantee’s discretion. If the Grantee does not exercise, or delays the exercise of, its rights
under this Deed in the event of a violation of any term, such inaction or delay shall not be
deemed or construed to be a waiver by Grantee of such term or of any subsequent
violation of the same or any other term of this Deed or of any of Grantee's rights under
this Deed. Grantor waives any defense of laches, estoppel, or prescription, including the
one-year statute of limitations for commencing an action to enforce the terms of a
building restriction or to compel the removal of any building or improvement because of
the violation of the same under C.R.S. § 38-41-119, et seq.
11. Acts Beyond Grantor’s Control. Nothing contained in this Deed shall be construed
to entitle Grantee to bring any action against Grantor for any injury to or change in the
Property resulting from causes beyond Grantor’s control, including without limitation
fire, flood, storm, and earth movement, or from any prudent action taken by Grantor
under emergency conditions to prevent, abate, or mitigate significant injury to the
Property resulting from such causes. Notwithstanding the foregoing, Grantor shall take
reasonable efforts to prevent third parties from performing, and shall not knowingly
allow third parties to perform, any act on or affecting the Property that is inconsistent
with the Purpose.
12. Access. No right of access by the general public to any portion of the Property is
conveyed by this Deed.
13. Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs
and liabilities of any kind related to the ownership, operation, upkeep, and maintenance
of the Property, including weed control and eradication and maintaining adequate
comprehensive general liability insurance coverage. Grantor shall keep the Property free
of any liens arising out of any work performed for, materials furnished to, or obligations
incurred by Grantor.
14. Taxes. Grantor shall pay before delinquency all taxes, assessments, fees, and
charges of whatever description levied on or assessed against the Property by competent
authority (collectively “Taxes”), including any Taxes imposed upon, or incurred as a
result of, this Deed, and shall furnish Grantee with satisfactory evidence of payment upon
request.
15. Hold Harmless. To the extent permitted by law, Grantor shall hold harmless,
indemnify, and defend Grantee and its members, directors, officers, employees, agents,
and contractors and the heirs, representatives, successors, and assigns (the “Indemnified
Party”) from and against all liabilities, penalties, costs, losses, damages, expenses,
causes of action, claims, demands, or judgments, including without limitation reasonable
attorneys' fees, arising from or in any way connected with: (1) injury to or the death of
any person, or physical damage to any property, resulting from any act, omission,
condition, or other matter related to or occurring on or about the Property, regardless of
cause, unless due solely to the negligence of the Indemnified Party; (2) the obligations
19
specified in Section 8; and (3) the presence or release of hazardous or toxic substances
on, under or about the Property. For the purpose of this Section 15, hazardous or toxic
substances shall mean any hazardous or toxic substance that is regulated under any
federal, state or local law. Without limiting the foregoing, nothing in this Deed shall be
construed as giving rise to any right or ability in Grantee, nor shall Grantee have any
right or ability, to exercise physical or managerial control over the day-to-day operations
of the Property, or otherwise to become an operator with respect to the Property within
the meaning of The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, or any similar law or regulation.
16. Real Property Interest. The conservation easement interest created by this Deed
constitutes a real property interest immediately vested in Grantee. The Parties stipulate
that this conservation easement interest has a fair market value equal to ten percent
(10%) of the full unencumbered fair market value of the Property (the “Easement Value
Percentage”). The values at the time of this Deed shall be those values used to calculate
the deduction for federal income tax purposes allowable by reason of this grant, pursuant
to I.R.C. § 170(h), whether or not Grantor claims any deduction for federal income tax
purposes. The Easement Value Percentage shall remain constant.
17. Condemnation or Other Extinguishment. If this Deed is taken, in whole or in part,
by exercise of the power of eminent domain (“Condemnation”), or if circumstances
arise in the future that render the Purpose impossible or impractical to accomplish, this
Deed can only be terminated, whether in whole or in part, by judicial proceedings in a
court of competent jurisdiction. Each Party shall promptly notify the other Party in
writing when it first learns of such circumstances. Grantee shall be entitled to full
compensation for its interest in any portion of this Deed that is terminated as a result of
Condemnation or other proceedings. Grantee’s proceeds shall be an amount at least equal
to the Easement Value Percentage multiplied by the value of the unencumbered fee
simple interest (excluding the value of any improvements) in the portion of the Property
that will no longer be encumbered by this Deed as a result of Condemnation or
termination. Grantor shall not voluntarily accept proceeds equal to less than the full fair
market value of the affected Property unrestricted by this Deed without the approval of
Grantee. Grantee shall use its proceeds in a manner consistent with the conservation
purposes of this Deed. Grantee's remedies described in this Section 17 shall be
cumulative and shall be in addition to any and all remedies now or hereafter existing at
law or in equity, including the right to recover any damages for loss of Conservation
Values as described in C.R.S. § 38-30.5-108.
18. Assignment.
a. This Deed is transferable, but Grantee may assign its rights and
obligations under this Deed only to an organization that:
(1) is a qualified organization at the time of transfer under I.R.C. §
Section 170(h) as amended (or any successor provision then applicable) and the
applicable regulations promulgated thereunder;
20
(2) is authorized to acquire and hold conservation easements under
Colorado law;
(3) agrees in writing to assume the responsibilities imposed on
Grantee by this Deed; and
b. If Grantee desires to transfer this Deed to a qualified organization having
similar purposes as Grantee but Grantor has refused to approve the transfer, Grantee may
seek an order by a court with jurisdiction to transfer this Deed to another qualified
organization having similar purposes that agrees to assume the responsibility imposed on
Grantee by this Deed, provided that Grantor shall have adequate notice of and an
opportunity to participate in the court proceeding leading to the court’s decision on the
matter.
c. Upon compliance with the applicable portions of this Section 18, the
Parties shall record an instrument completing the assignment in the property records of
the county or counties in which the Property is located. Assignment of the Deed shall not
be construed as affecting the Deed’s perpetual duration and shall not affect the Deed’s
priority against any intervening liens, mortgages, easements, or other encumbrances.
19. Subsequent Transfers. Grantor shall notify the Grantee in writing at least thirty
(30) days in advance of the proposed conveyance of any interest in all or any portion of
the Property, including any conveyance under threat of condemnation, and shall
incorporate by reference the terms and conditions of this Deed in any deed or other legal
instrument by which it divests itself of any interest in all or a portion of the Property,
except conveyance of a leasehold interest that is no longer than one year in duration or an
agricultural lease, that is otherwise consistent in all respects with the terms of this Deed.
The failure of Grantor to perform any act required by this Section 19 shall not impair the
validity of this Deed or limit its enforceability in any way.
20. Notices. Any notice, demand, request, consent, approval, or communication that
either Party is required to give to the other in writing shall be either served personally or
delivered by (a) certified mail, with return receipt requested; or (b) a commercial delivery
service that provides proof of delivery, addressed as follows:
To Grantor:
Glen and Margaret Hazelhurst
2887 W. Trilby Road
Fort Collins, CO 80526
To Grantee:
City of Fort Collins
Natural Areas Department
c/o John Stokes, Natural Areas Director
P.O. Box 580
21
Fort Collins, CO 80522
or to such other address as either Party from time to time shall designate by written notice
to the other.
21. Grantor’s Title Warranty. Grantor warrants that Grantor has good and sufficient
title to the Property and Grantor has access to the Property for the purposes granted or
permitted to Grantee in this Deed, and Grantor promises to defend the same against all
claims whatsoever. Grantor’s warranty of title is further subject to the encumbrances set
forth on Exhibit D, attached hereto and incorporated herein by this reference.
22. Subsequent Liens on the Property. No provisions of this Deed shall be construed
as impairing the ability of Grantor to use this Property as collateral for subsequent
borrowing, provided that any deed of trust, mortgage or lien arising from such a
borrowing shall not encumber less than all of the Property, and shall be subordinate to
this Deed for all purposes so that any such instrument expressly shall be deemed to have
been recorded after this Deed and so that any foreclosure of such deed of trust, mortgage
or lien shall not affect any provision of this Deed, including without limitation its
perpetual nature, the payment of proceeds as described in Section 17 above, and the
limitation of Section 5.e.
23. Recording. Grantee shall record this Deed in a timely fashion in the official
records of each county or counties in which the Property is situated, and may re-record it
at any time as may be required to preserve its rights in this Deed.
24. Environmental Attributes. Unless otherwise provided in this Deed, Grantor
reserves all Environmental Attributes associated with the Property. “Environmental
Attributes” shall mean any and all tax or other credits, benefits, renewable energy
certificates, emissions reductions, offsets, and allowances (including but not limited to
water, riparian, greenhouse gas, beneficial use, and renewable energy), generated from or
attributable to the conservation, preservation and management of the Property in
accordance with this Deed. Nothing in this Section 24 shall modify the restrictions
imposed by this Deed or otherwise be inconsistent with the Purpose.
25. Tax Benefits. Grantor acknowledges that Grantor is responsible for obtaining legal
and accounting counsel to advise Grantor regarding the applicability of federal or state
tax benefits that might arise from the bargain sale (sale at less than fair market value) or
donation of the Deed. Grantee makes no representation or warranty that Grantor will
receive tax benefits for the bargain sale or donation of the Deed.
26. Deed Correction. The Parties shall cooperate to correct mutually acknowledged
errors in this Deed (and exhibits), including typographical, spelling, or clerical errors.
The Parties shall make such corrections by written agreement.
27. Effective Date. The Effective Date of this Deed shall be the date and year first
written above.
22
28. General Provisions.
a. Controlling Law. The interpretation and performance of this Deed shall be
governed by the laws of the State of Colorado.
b. Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Deed shall be liberally construed in favor of the grant to effect the
Purpose and the policy and purpose of C.R.S. § 38-30.5-101, et seq. If any provision in
this Deed is found to be ambiguous, an interpretation consistent with the Purpose that
would render the provision valid shall be favored over any interpretation that would
render it invalid.
c. Severability. If any provision of this Deed, or the application thereof to
any person or circumstance, is found to be invalid, it shall be deemed severed from this
Deed, and the balance of this Deed shall otherwise remain in full force and effect.
d. Entire Agreement. The Recitals above are a material part of this Deed and
are incorporated into this Deed. This Deed sets forth the entire agreement of the Parties
with respect to the grant of a conservation easement over the Property and supersedes all
prior discussions, negotiations, understandings, or agreements relating to the grant, all of
which are merged in this Deed.
e. Joint Obligation. The obligations imposed upon Grantor and Grantee in
this Deed shall be joint and several if more than one entity or individual holds either
interest at any given time. If there is more than one owner of the Property at any time, the
obligations imposed by this Deed upon the owners shall be joint and several upon each of
the owners of the Property.
f. Non-Merger. A merger of this Deed and the fee title to the Property cannot
occur by operation of law. No merger shall be deemed to have occurred hereunder or
under any documents executed in the future affecting this Easement, unless the parties
expressly state that they intend a merger of estates or interests to occur.
g. Successors. The covenants, terms, conditions, and restrictions of this Deed
shall be binding upon, and inure to the benefit of, the Parties and their respective personal
representatives, heirs, successors, and assigns and shall continue as a servitude running in
perpetuity with the Property.
h. Termination of Rights and Obligations. Provided a transfer is permitted by
this Deed, a Party's rights and obligations under the Deed terminate upon transfer of the
Party's interest in the Deed or Property, except that liability for acts or omissions
occurring prior to transfer shall survive transfer.
i. Captions. The captions in this Deed have been inserted solely for
convenience of reference and are not a part of this Deed and shall have no effect upon
construction or interpretation.
23
j. No Third-Party Beneficiaries. This Deed is entered into by and between
Grantor and Grantee and is solely for the benefit of Grantor and Grantee and their
respective successors and assigns for the purposes set forth in this Deed. The enforcement
of the terms and conditions of this Deed and all rights of action relating to such
enforcement, shall be strictly reserved to the parties. Nothing contained in this Deed shall
give or allow any claim or right of action whatsoever by any other third person. It is the
express intention of the Parties that any person or entity, other than the Parties, receiving
services or benefits under this Deed shall be deemed an incidental beneficiary only.
k. Amendment. If circumstances arise under which an amendment to or
modification of this Deed or any of its exhibits would be appropriate, Grantor and
Grantee may jointly amend this Deed so long as the amendment (i) is consistent with the
Conservation Values and Purpose of this Deed (ii) does not affect the perpetual duration
of the restrictions contained in this Deed, (iii) does not affect the qualifications of this
Deed under any applicable laws, and (iv) complies with Grantee’s procedures and
standards for amendments (as such procedures and standards may be amended from time
to time). Any amendment must be in writing, signed by the Parties, and recorded in the
records of the Clerk and Recorder of the county in which the Property is located. In order
to preserve the Deed’s priority, the Grantee may obtain subordinations of any liens,
mortgages, easements, or other encumbrances, and the Grantee may require a new title
policy. For the purposes of this paragraph, the term “amendment” means any instrument
that purports to alter in any way any provision of or exhibit to this Deed. Nothing in this
Section 28.k shall be construed as requiring Grantee to agree to any particular proposed
amendment.
l. Change of Conditions or Circumstances. A change in the potential
economic value of any use that is prohibited by or inconsistent with this Deed, or a change
in any current or future uses of neighboring properties, shall not constitute a change in
conditions or circumstances that make it impossible or impractical for continued use of the
Property, or any portion thereof, for conservation purposes and shall not constitute grounds
for terminating the Deed in whole or in part. In conveying this Deed, the Parties have
considered the possibility that uses prohibited or restricted by the terms of this Deed may
become more economically valuable than permitted uses, and that neighboring or nearby
properties may in the future be put entirely to such prohibited or restricted uses. It is the
intent of Grantor and Grantee that any such changes shall not be deemed to be
circumstances justifying the termination or extinguishment of this Deed, in whole or in
part. In addition, the inability of Grantor, or Grantor’s heirs, successors, or assigns, to
conduct or implement any or all of the uses permitted under the terms of this Deed, or the
unprofitability of doing so, shall not impair the validity of this Deed or be considered
grounds for its termination or extinguishment, in whole or in part.
m. Authority to Execute. Each Party represents to the other that such Party
has full power and authority to execute, deliver, and perform this Deed, that the
individual executing this Deed on behalf of each Party is fully empowered and authorized
to do so, and that this Deed constitutes a valid and legally binding obligation of each
Party enforceable against each Party in accordance with its terms.
24
n. Obligations Subject to Annual Appropriation. Any obligations of the
Grantee under this Deed for fiscal years after the year of this Deed are subject to annual
appropriation by Grantee’s governing body, in its sole discretion, of funds sufficient and
intended for such purposes.
o. Good Faith Negotiation/Mediation. Where this Deed requires the consent
of either party, such consent shall not be unreasonably withheld, conditioned, delayed or
denied. Where this Deed specifies that a decision requires the mutual agreement of the
parties, the parties shall be obligated to make best efforts to negotiate in good faith to
reach mutual agreement consistent with the Conservation Values and purposes of the
Easement. In the event that such efforts by the parties fail to result in mutual agreement
through negotiation, the parties agree to attempt to resolve their dispute through
mediation. Either party may commence the mediation process by providing the other
party with written notice setting forth the subject of the dispute, and the solution
requested. Within ten (10) days after the receipt of the notice, the other party shall
deliver a written response to the initiating party’s notice. The parties agree to meet with a
mutually acceptable mediator to attempt to resolve the dispute. The initial mediation
session shall be held within thirty (30) days after the initial notice, unless the selected
mediator cannot accommodate the parties within that time. If the parties cannot agree
upon a mediator, the Grantee will provide the Grantor with a list of at least three
professional mediation organizations in the Fort Collins/Denver area that are not
affiliated with the City of Fort Collins. The Grantor will select an organization from the
list within ten (10) days of receipt of the list, and the selected organization will be asked
to choose a mediator for the parties. The parties agree to share equally the costs and
expenses of the mediation, which shall not include the expenses incurred by each party
for its own legal representation in connection with the mediation. The provisions of this
subparagraph may be enforced by any court of competent jurisdiction, and the party
seeking enforcement shall be entitled to an award of all costs, fees and expenses,
including reasonable attorneys’ fees and other legal costs, to be paid by the party against
whom enforcement is ordered.
p. No Waiver of Governmental Immunity. Anything else in this Deed to the
contrary notwithstanding, no term or condition of this Deed shall be construed or
interpreted as a waiver, either express or implied, of any of the immunities, rights,
benefits or protection of the Colorado Governmental Immunity Act, C.R.S. §24-10-101,
et seq., as amended or as may be amended in the future (including, without limitation,
any amendments to such statute, or under any similar statute which is subsequently
enacted) (“CGIA”), subject to any applicable provisions of the Colorado Constitution and
applicable laws. The Parties acknowledge that liability for claims for injury to persons or
property arising out of the negligence of a government entity, its members, officials,
agents and employees may be controlled and/or limited by the provisions of the CGIA.
The Parties agree that no provision of this Deed shall be construed in such a manner as to
reduce the extent to which the CGIA limits the liability of any governmental party, its
members, officers, agents and employees.
25
TO HAVE AND TO HOLD unto Grantee, its successors, and assigns forever.
IN WITNESS WHEREOF, Grantor and Grantee have executed this Deed of
Conservation Easement as of the Effective Date.
GRANTOR:
Glen T. Hazelhurst
Margaret E. Hazelhurst
STATE OF COLORADO )
) ss
COUNTY OF ____________ )
The foregoing instrument was acknowledged before me this day of
____________, 2019, by Glen T. Hazelhurst and Margaret E. Hazelhurst.
Witness my hand and official seal.
My Commission expires:
_______________________________
Notary Public
26
GRANTEE:
CITY OF FORT COLLINS
a Colorado municipal corporation
By:____________________________
, Mayor
ATTEST:
________________________
City Clerk
________________________
Printed Name
Approved as to Form:
_______________________
Senior Assistant City Attorney
________________________
Printed Name
STATE OF COLORADO
) ss.
COUNTY OF LARIMER
The foregoing instrument was acknowledged before me this _____ day of __________,
2019, by _________________as Mayor of the City of Fort Collins.
Witness my hand and official seal
My commission expires:
______________________________
Notary Public
27
[Exhibits A and B to come following Minor Land Division]
Draft 7/16/19
Updated 1/2016
SECOND AMENDED AND RESTATED DEED OF CONSERVATION EASEMENT
AND ASSIGNMENT
HAZELHURST PROPERTY – 40 ACRE PARCEL
THIS SECOND AMENDED AND RESTATED DEED OF CONSERVATION
EASEMENT AND ASSIGNMENT (the “Second Amended Conservation Easement” or
“Deed”) is made this ____ day of ___________ 2019 (“Effective Date”), by CITY OF
FORT COLLINS, COLORADO, a municipal corporation, having its address at 300
Laporte Avenue, Fort Collins, CO 80521 (“Grantor”), to BOARD OF COUNTY
COMMISSIONERS OF THE COUNTY OF LARIMER, STATE OF COLORADO (the
“Grantee”), having its address at 200 W Oak Street, Fort Collins, CO 80521. (Grantor
and Grantee may be individually referred to as a “Party” and collectively referred to as
“Parties.”) The following exhibits are attached and incorporated:
Exhibit A - Legal Description of Property
Exhibit B - Map of Property
Exhibit C - Baseline Acknowledgement
Exhibit D - Encumbrances
RECITALS
A. Grantor is the sole owner in fee simple of approximately 40 acres of real property
located in Larimer County, Colorado, encumbered by a conservation easement, more
particularly described in Exhibit A and generally depicted on Exhibit B (the
“Property”).
B. The Property is encumbered by a Deed of Conservation Easement granted by
Glen T. Hazelhurst and Margaret E. Hazelhurst (“Hazelhurst”) to Grantor recorded on
October 31, 2005 at Reception No. 20050092426 in the records of Larimer County,
Colorado Clerk and Recorder, as amended by a First Amended and Restated Deed of
Conservation Easement dated ______, 2019 and recorded on _______, 2019 at Reception
No. _______________ in the records of the Larimer County, Colorado Clerk and
Recorder (the “First Amended Conservation Easement”).
C. The First Amended Easement encumbers both the Property and an adjacent 5 acre
parcel owned by Hazelhurst (“Parcel A”), and permits both subdivision of the Property
from Parcel A, and further amendment of the First Amended Easement to create two
separate documents should the Property and Parcel A be conveyed into separate
ownership.
D. Grantor purchased the Property from Hazelhurst and wishes to assign its interest
in the Easement on the Property to Grantee, and Grantee wishes to assume ownership of
the Easement from Grantor. The Parties also wish to restate, amend, supersede and
replace the First Amended Conservation Easement and enter into a new conservation
EXHIBIT B-2
2
easement with respect to the Property in order to facilitate management of the Easement
on the Property separately from Parcel A.
E. The Property possesses relatively natural habitat, scenic, open space,
educational, and/or recreational values (collectively, “Conservation Values”) of great
importance to Grantor, the people of Fort Collins and the surrounding Larimer County
region and the people of the State of Colorado. In particular, the Property contains the
following characteristics, which are also included within the definition of Conservation
Values:
i. Relatively Natural Habitat § 1.170A-14(d)(3). The Property's
ecological values include a native biotic community of foothills
grasslands that provide food, shelter, and migration corridors for
several wildlife species, including, but not limited to, coyotes, foxes,
mule deer, mountain bluebirds, golden eagles and red- tailed hawks.
The grassland community present on the Property includes a globally
rare plant community. The Property sustains a variety of bird species,
including, but not limited to, horned larks, western meadowlarks, lark
sparrows and grasshopper sparrows. Finally, the protection of the
property contributes to the ecological viability of the adjacent Coyote
Ridge Natural Area.
ii. Open Space§ 1.170A-14(d)(4). The Property qualifies as open space
because it will be preserved for the scenic enjoyment of the general
public and will yield a significant public benefit. More specifically,
preservation of the Property adds to the scenic character of the local rural
landscape in which it lies because a large portion of the Property is
visible to the general public from South Taft Hill Road, a paved, well-
traveled road, which is actively utilized by residents of Fort Collins,
Larimer County, and the State of Colorado. The Property is in the
foreground of a view of the foothills of the Rocky Mountains from South
Taft Hill Road, possesses aesthetic value as open space within the Fort
Collins-Loveland Corridor, and helps provide a buffer of undeveloped
land where there is a foreseeable trend of development in the vicinity of
the Property in the near future, due primarily to the proximity of the
Cities of Fort Collins and Loveland, which City Limits lie
approximately one and one-half miles northeast and three miles
southeast of the Property, respectively. The Property is adjacent to the
Coyote Ridge Natural Area owned and managed by the City of Fort
Collins. This public land includes a trail into the foothills directly west
of the Property. As a result, much of the Property is highly visible from
this public trail. Because of the immediate proximity to public open
space, the Property provides a visual buffer and continuation of the open
space already present to the west. There is a strong likelihood that
development of the Property would lead to or contribute to degradation
3
of the scenic and natural character of the area. Preservation of the
Property will add to the scenic character of the local landscape in which
it lies, and will continue to provide an opportunity for the general public
to appreciate the Property's scenic values. In particular, preservation of
the open, undeveloped nature of the near ridgetop will preserve
important scenic qualities of the Property. It should also be noted that
the terms of the Conservation Easement do not permit a degree of
intrusion or future development that would interfere with the essential
scenic quality of the land. As such, preservation of the Property will
continue to provide an opportunity for the general public to appreciate
its scenic values.
iii. Potential future public access for outdoor education and appropriate non-
motorized trail recreation including hiking, wildlife watching, horseback
riding, and mountain biking.
iv. Conservation of this Property is consistent with the following federal,
state, and local governmental policies:
a) C.R.S. § 33-1-101, et seq., provides in relevant part that "it is the
declared policy of the State of Colorado that the wildlife and their
environment are to be protected, preserved, enhanced, and managed for
the use, benefit, and enjoyment of the people of this state and its
visitors."
b) C.R.S. § 33-2-101 to 33-2-106, which provide that “it is the policy of
this state to manage all nongame wildlife, recognizing the private
property rights of individual owners, for human enjoyment and welfare,
for scientific purposes, and to ensure their perpetuation as members of
ecosystems; that species or subspecies of wildlife indigenous to this
state which may be found to be endangered or threatened within the state
should be accorded protection in order to maintain and enhance their
numbers to the extent possible; that this state should assist in the
protection of species or subspecies of wildlife which are deemed to be
endangered or threatened elsewhere.”
c) C.R.S. § 33-10-101 to 33-10-114, which provide that “it is the policy of
the State of Colorado that the natural, scenic, scientific, and outdoor
recreation areas of this state are to be protected, preserved, enhanced,
and managed for the use, benefit, and enjoyment of the people of this
state and visitors of this state.”
d) C.R.S. § 38-30.5-101, et seq., provides for the establishment of
conservation easements to maintain land "in a natural, scenic, or open
condition, or for wildlife habitat, or for agricultural, horticultural,
wetlands, recreational, forest, or other use or condition consistent with
the protection of open land, environmental quality or life-sustaining
ecological diversity, or appropriate to the conservation and preservation
4
of buildings, sites, or structures having historical, architectural, or
cultural interest or value."
e) Fort Collins Natural Areas Master Plan (2014) states that “the mission
of the Natural Areas Department is to conserve and enhance lands with
natural resource, agricultural, and scenic values, while providing
meaningful education and appropriate recreation opportunities” and
establishes the conservation focus areas including the Foothills Corridor
and Core Natural Areas which encompass the Property.
F. Grantor intends that the Conservation Values be preserved and protected in
perpetuity, and that the Deed prohibit any uses that would materially adversely affect the
Conservation Values or that otherwise would be inconsistent with the Purpose (defined
below). The Parties acknowledge and agree that uses expressly permitted by this Deed
and Grantor’s current land use patterns on the Property, including without limitation
those relating to grazing existing on the Effective Date (as defined in Section 27, below),
do not materially adversely affect the Conservation Values and are consistent with the
Purpose.
G. By granting this Deed, Grantor further intends to (i) create a conservation
easement interest that binds Grantor as the owner of the Property and also binds future
owners of the Property; and (ii) convey to Grantee the right to preserve and protect the
Conservation Values in perpetuity.
H. Grantee is a political subdivision of the State of Colorado, and a “qualified
organization” under I.R.C. § 170(h) and Treas. Reg. § 1.170A-14(c). The mission of
Grantee’s Natural Resources Department is to conserve and enhance lands with natural
resource, agricultural, and scenic values, while providing meaningful education and
appropriate recreation opportunities.
I. Grantee is also a governmental entity as required under C.R.S. § 38-30.5-101, et
seq., which provides for conservation easements to maintain land and water in a natural,
scenic or open condition, for wildlife habitat, or for agricultural and other uses or
conditions consistent with the protection of open land in Colorado.
J. Grantee is certified as license number CE0035 by the State of Colorado’s
Division of Real Estate pursuant to C.R.S. § 12-61-724 and 4 C.C.R. 725-4, Chapter 2, to
hold conservation easements for which a tax credit is claimed.
K. Grantee agrees by accepting this Deed to preserve and protect in perpetuity the
Conservation Values for the benefit of this and future generations.
NOW, THEREFORE, pursuant to the laws of the State of Colorado, and in
particular C.R.S. § 38-30.5-101, et seq., and in consideration of the recitals set forth
above, and the mutual covenants, terms, conditions, and restrictions contained in this
Deed, and other good and valuable considerations, the receipt and sufficiency of
which are hereby acknowledged, Grantor voluntarily assigns, grants and conveys to
Grantee, and Grantee voluntarily assumes and accepts, a conservation easement in gross
5
in perpetuity over the Property for the Purpose set forth below and of the nature and
character and to the extent set forth in this Deed. This Deed entirely amends, restates and
replaces the First Amended Conservation Easement with respect to the Property.
1. Purpose. The purpose of this Deed is to ensure that Grantor preserves and protects
in perpetuity the Conservation Values as they exist upon the Effective Date and as they
may evolve in the future, in accordance with I.R.C. § 170(h), Treas. Reg. § 1.170A-14
and C.R.S. § 38-30.5-101 et seq. (“Purpose”). To effectuate the Purpose, Grantor and
Grantee agree: (i) to allow those uses of the Property that are expressly permitted by this
Deed, subject to any limitations or restrictions stated in this Deed, and those uses of the
Property that do not materially adversely affect the Conservation Values; and (ii) to
prevent any use of the Property that is expressly prohibited by this Deed or will
materially adversely affect the Conservation Values. Notwithstanding the foregoing,
nothing in this Deed is intended to compel a specific use of the Property, such as
agriculture, other than the preservation and protection of the Conservation Values.
2. Baseline Documentation Report. The Parties acknowledge that a written report
dated September 30, 2005 was prepared by LREP, Inc., reviewed and approved, which
documents the Property’s original condition (the “Baseline Report”). Either or both
parties may update the Baseline Report at any time. Both parties agree to provide a copy
of the new report to the other. The Baseline Report contains a natural resources inventory
of the Property and also documents existing improvements on and current uses of the
Property. A copy of the Baseline Report shall be kept on file with each Party and is by
this reference made a part of this Deed. The Parties acknowledge that the Baseline Report
is intended to establish and accurately represent the condition of the Property as of the
Effective Date, and the Parties have acknowledged the same in a signed statement, a copy
of which is attached as Exhibit C. The Parties will use the Baseline Report to assure that
any future changes to the Property are consistent with the Purpose. However, the Parties
agree that the existence of the Baseline Report shall in no way limit the Parties’ ability to
use other pertinent information in resolving any controversy that may arise with respect
to the condition of the Property as of the Effective Date.
3. Rights of Grantee. To accomplish the Purpose, in addition to the rights of the
Grantee described in C.R.S. § 38-30.5-101 et seq., and the rights of Grantee described
elsewhere in this Deed, the Deed conveys the following rights to Grantee:
a. Right to Protect the Conservation Values. To preserve and protect the
Conservation Values in perpetuity by administering, managing and enforcing the terms of
this Deed;
b. Right to Access the Property. To enter upon the Property at reasonable
times to monitor Grantor’s compliance with and, if necessary, to enforce the terms of this
Deed. Such entry shall be made upon prior reasonable notice to Grantor, except in the
event Grantee reasonably determines that immediate entry upon the Property is necessary
to prevent or mitigate a violation of this Deed. In the case where Grantee has determined
that immediate entry is necessary, a reasonable attempt will be made to notify Grantor
6
prior to such entry. Grantee shall not unreasonably interfere with Grantor’s use and quiet
enjoyment of the Property when exercising any such rights;
c. Right to Prevent Inconsistent Activities and Require Restoration of
Disturbed Areas. To prevent any activity on or use of the Property that is inconsistent
with the Purpose or the express terms of this Deed and to require the restoration of such
areas or features of the Property that may be damaged by any inconsistent use; and
d. Right of Review. To require Grantor to consult with Grantee regarding the
negotiations of any and all agreements between Grantor and third parties that may impact
or disturb any portion of the surface of the Property, including but not limited to
easement agreements, utility easements, right of way agreements, surface use agreements,
and lease agreements (other than those specifically related to the agricultural and
recreational operations of the Property), and to have the right to approve any such
agreement prior to such agreement being executed. Within 60 days of consulting with
Grantor in writing, Grantee shall provide Grantor with a decision or explain to Grantor
why Grantee reasonably requires no more than an additional 30 days to reach a decision.
Grantee’s approval shall not be unreasonably withheld, but nothing in this Deed is
intended to require Grantee to approve any action or agreement that is inconsistent with
the terms of this Deed.
4. Reserved Rights. Subject to the terms of the Deed, Grantor reserves to Grantor, and
to Grantor’s personal representatives, heirs, successors, and assigns, all rights accruing
from Grantor’s ownership of the Property, including (i) the right to engage in or permit or
invite others to engage in all uses of the Property that are expressly permitted by this
Deed, subject to any limitations or restrictions stated in this Deed, and those uses of the
Property that do not materially adversely affect the Conservation Values; and (ii) to retain
the economic viability of the Property and retain income derived from the Property from
all sources, unless otherwise provided in this Deed, that are consistent with the terms of
this Deed. Grantor may not, however, exercise these retained rights in a manner that is
expressly prohibited by this Deed or that materially adversely affects the Conservation
Values. Without limiting the generality of the foregoing, Grantor reserves the following
specific rights:
a. Right to Convey. Grantor may sell, give, lease, bequeath, devise,
mortgage, or otherwise encumber or convey the Property, subject to the following: (i) any
lease, deed, or other conveyance or encumbrance is subject to this Deed, and any such
document shall specifically incorporate the terms and conditions of this Deed by
reference to this Deed; (ii) any lease or deed or other conveyance document shall
specifically state which reserved rights have been exercised, if at all, and which reserved
rights are specifically allocated to the new owner or lessee; and (iii) notice of any
proposed conveyance or encumbrance as set forth in this Section 4.a shall be subject to
the provisions of Section 19 of this Deed.
b. Subdivision. Any division or subdivision of title to the Property, whether
by legal or physical process, into two or more parcels of land or partial or separate
interests (including but not limited to condominium interests or the partition of undivided
7
interests) is prohibited, other than conveyances to public entities for public roads or other
public improvements consistent with this Deed. Nothing in this subparagraph shall be
construed to prohibit ownership of the Property by an entity consisting of more than one
member.
c. Resource Management. To accomplish the preservation and protection of
the Conservation Values in perpetuity, Grantor shall operate, manage and maintain the
Property in a manner that promotes the continued viability of the natural resources on the
Property while maintaining any permissible productive uses of the Property, subject to
the provisions of Section 6 of this Deed. Specifically, Grantor agrees to conduct the
activities listed below in a manner consistent with the Purpose. Notwithstanding the
foregoing, Grantor and Grantee recognize that changes in economic conditions, in
agricultural technologies, in accepted farm, ranch and forest management practices, and
in the situation of Grantor may result in an evolution of agricultural, silvicultural, and
other uses of the Property, and such uses are permitted if they are consistent with the
Purpose.
(1) Habitat Management. Grantor may conduct any activities to create,
maintain, restore, or enhance wildlife habitat and native biological communities on the
Property, provided that such activities do not have more than a limited, short-term
adverse effect on the Conservation Values.
(i) Weed/Pest Management. Management of land to
control erosion, growth of weeds and brush, rodents,
pests, insects and pathogens, fire danger and other
threats is permitted consistent with applicable laws and
regulations and in keeping with maintenance of the
Conservation Values of the Property, and in accordance
with the Land Management Plan described in Section 6
below. The Grantor agrees to manage noxious weeds in
accordance with the requirements of Larimer County,
the State of Colorado and other applicable agencies.
(ii) Maintenance/Restoration. Maintenance, stabilization,
replacement, or restoration of existing croplands,
springs, ditches and pastureland, are permitted. Wetland
pond restoration and creation are permitted if and to the
extent consistent with the Purpose and the terms of this
Deed.
(iii) Prescribed Fire. Igniting outdoor prescribed fires for
agricultural or ecological purposes shall be allowed on
the Property, provided that such activity is conducted in
accordance with accepted prescribed burn practices, all
applicable laws or regulations, and the Land
Management Plan described in Section 6 below.
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(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.
(i) Grazing. Livestock grazing is permitted in accordance
with sound stewardship and management practices, and
shall be managed so that the overall condition of the
Property is preserved at its baseline condition and in no
event in less than “fair” condition (as defined by an
applicable U.S. Department of Agriculture - Natural
Resources Conservation Service (NRCS) Technical
Guide). For the purposes of this Deed “livestock” shall
mean cattle, horses, sheep, goats, llamas, alpaca, and
bison. The raising of other livestock and/or game
animals shall not be permitted unless specifically
approved by the Grantee and described in the Land
Management Plan. The Grantor shall comply with and
have responsibility for compliance of the Property with
the Colorado Noxious Weed Act and any other
governmental noxious weed control regulations.
(ii) Other Agricultural Uses. Gardening, beekeeping, and an
orchard, all solely for consumption by the onsite
residents, is allowed within in an area less than one acre
in size.
(3) Timber Management. Trees may be cut to control insects and
disease, to control invasive non-native species, to prevent personal injury and property
damage, to promote forest health, and for fire mitigation purposes including limited and
localized tree and vegetation thinning and the creation of defensible space for permitted
improvements. Collecting of firewood from dead or downed trees, or the use of trees cut
as part of forest health management for firewood is permitted. In addition, trimming
brush and trees to create a vehicular throughway to accomplish land management is
permitted. Any large-scale fire mitigation activities or commercial timber harvesting on
the Property shall be conducted on a sustainable yield basis and in substantial accordance
with a forest management plan prepared by a competent professional forester. Any large-
scale fire mitigation activities or timber harvesting shall be conducted in a manner that is
consistent with the Purpose. A copy of the forest management plan shall be approved by
Grantee prior to any large-scale fire mitigation activities or commercial timber
harvesting.
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d. Recreational Activities. Grantor reserves the right to engage in and permit
the public to engage in non-commercial, non-motorized passive recreational activities,
such as horseback riding, hiking, cross-country skiing, snowshoeing, and other similar
low-impact recreational uses on the Property. Construction of recreational trails and
trailhead for public use on the Property is permitted in accordance with 4.f(3) of this
Deed.
e. Hunting. No hunting, shooting, or trapping of any animals shall be
permitted on the Property with the following exceptions:
(1) live-trapping of prairie dogs for relocation
pursuant to Section 4.l. herein;
(2) trapping of small mammals for rodent control
within the Building Envelope;
(3) live-trapping for research purposes.
(4) for protection of human health and safety and
protection of the conservation values of the
property, pursuant to Section 4.l. herein.
No public, commercial or recreational use of the Property for hunting, shooting or
trapping of any animals, is allowed.
f. Improvements.
(1) Residential and Non-Residential Improvements. No residential
structures exist on the Property and no new residential structures are permitted. Non-
Residential Improvements, defined below, existing as of the Effective Date are permitted,
and the Grantor may maintain, repair, replace and reasonably enlarge such improvements
in their current locations without Grantee’s approval. Grantor reserves the right to
construct or place additional Non-Residential Improvements, and shall provide prior notice
of such construction to Grantee in accordance with Section 7 of this Deed. 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.
Once constructed, the Grantor may maintain, repair, replace and reasonably enlarge such
new improvements in their initially constructed locations without Grantee’s approval.
(2) Building Envelope. Grantor and Grantee agree to mutually work together in the
future to designate a building envelope (“Building Envelope”) of no more than four (4)
acres on the Property. New Non-Residential Improvements may be built within the Building
Envelope subject to the following limitations:
(i) Improvements will be grouped together to the extent
practicable (Ex: Vault restrooms, storage building, kiosk
and parking lot in one general location.)
(ii) Maximum square footage of a structure or building shall
not exceed 1,000 square feet.
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(iii) Maximum height of any structure shall be 15 feet.
(3) “Non-Residential Improvements” shall mean all covered or uncovered
recreational, agricultural and other improvements that are not intended for human
habitation, including but not limited to well houses, outhouses, gazebos, picnic
areas, trailhead parking areas (including vault toilets, trash receptacles, shelters, and
kiosks), loafing sheds, corrals, hayracks, cisterns, stock tanks, stock ponds, troughs,
fenced hay stacks, livestock feeding stations, hunting blinds, and wildlife viewing
platforms. Notwithstanding the foregoing, trail markers, interpretive signs,
information kiosks, site signs, fences (subject to the terms of Section 4.f of this
Deed), sprinklers, water lines, water wells and ditches may be constructed outside of
the Building Envelope.
(4) Setbacks/Requirements for Improvements. In no case shall any
structure be built within one hundred (100) feet of any stream, spring, or
improvement, as identified in the Baseline Documentation or as may subsequently
develop or be determined to exist on the Property, with the exception of water
facilities described in paragraph 4.j below. Except for structures permitted within
the Building Envelope, as shown on Exhibit B, no structure shall exceed twenty-
five (25) feet in height, as measured from the average elevation of the finished
grade to the highest point on a structure, unless approved by the Grantee. All
development and construction must comply with local, state, and federal
requirements.
g. Roads and Trails. Maintenance of existing Roads and Trails is permitted.
“Roads” shall mean any road that is graded, improved or maintained, including seasonal
unimproved roads and two-track roads. “Trails” shall mean any unimproved or improved
path, or paved or unpaved trail constructed or established by human use, but shall not
include game trails established and used by wildlife only. Prior to the construction or
establishment of any Road or Trail, Grantor shall provide notice to Grantee in accordance
with Section 7 of this Deed.
(1) Grantor shall not construct or establish Roads except those existing Roads
depicted on Exhibit B, an access road in an easement across Parcel B as permitted in
paragraph 4.b. above, or such other Roads as Grantee determines are consistent with the
Purpose. Grantor shall not construct or establish any Road wider than necessary to provide
access for all permitted uses or to meet local codes for width of access to improvements
permitted by this Deed. Grantor shall not pave or otherwise surface a Road with any
impervious surface, except if Grantee determines the paving of the Road is consistent with
the Purpose.
(2) Grantor shall not construct or establish any new Trail on the Property unless
Grantee determines a new Trail is consistent with the Purpose. Grantor may construct
approved Trails, and trail head access roads and parking for appropriate, public trail
recreation including hiking, wildlife watching, horseback riding, and mountain biking.
However, trailhead parking may not be constructed on the Property before 2024. Trail
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recreation shall be non-motorized except as required for compliance with the Americans
with Disabilities Act or other applicable laws.
h. Fences. Existing fences may be maintained, repaired and replaced, and new
fences may be built anywhere on the Property. The location and design of any fencing shall
facilitate and be compatible with the movement of wildlife across the Property and
otherwise consistent with the Purpose and in accordance with Section 7 of this deed.
i. Water Facilities. Maintenance, development and construction of water
facilities such as water wells, livestock watering wells, windmills, springs, water storage
tanks, hydrants, pumps and/or well houses and similar minor agricultural infrastructure
that are solely for use on the Property in conjunction with those activities on the Property
permitted by this Deed, including providing drinking water for users and livestock on the
Property, for use by the Grantor, Grantor’s lessees and/or invitees, are permitted. Any
facilities pursuant to this paragraph shall be sited and constructed or placed so as not to
substantially diminish or impair the Conservation Values of the Property and may be
considered exempt from the setback requirement described in Section 4.f.(4). above.
j. Utility Improvements. Any energy generation or transmission
infrastructure and other utility improvements on the Property that already exist on the
Property pursuant to an easement or other instrument recorded on or prior to the Effective
Date, or later approved by Grantor after notice to Grantee in accordance with Section 7 of
this Deed, may be repaired or replaced with an improvement of similar size and type at
their current locations on the Property without further permission from Grantee. Utility
improvements include but are not limited to: (i) natural gas distribution pipelines, electric
power poles, transformers, and lines; (ii) telephone and communications towers, poles,
and lines; (iii) water wells, domestic water storage and delivery systems; and (v)
renewable energy generation systems including but not limited to wind, solar,
geothermal, or hydroelectric for use on the Property (“Utility Improvements”). Any new
or expanded Utility Improvements must be consistent with the Purpose, and Grantor shall
not enlarge or construct any additional Utility Improvements without Grantee’s approval.
However, Grantor reserves the right to construct Utility Improvements solely to provide
utility services to the improvements permitted by this Deed, provided that no Utility
Improvement exceeds 35 feet in height. Utility Improvements shall be located
underground to the extent practicable.
(1) Additional Requirements. Prior to the enlargement or construction
of any Utility Improvements on the Property, Grantor shall provide notice to Grantee in
accordance with Section 7 of this Deed. Following the repair, replacement, enlargement
or construction of any Utility Improvements, Grantor shall promptly restore any disturbed
area to a condition consistent with the Purpose.
(2) Alternative Energy.
(i) Wind, solar, and hydroelectric generation facilities that are
primarily for the generation of energy for use on the Property in conjunction with those
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activities permitted by this Deed (collectively “Alternative Energy Generation Facilities”)
may be constructed in accordance with this Section 4.j(2). Notwithstanding the
foregoing, no approval of Grantee shall be required if the Alternative Energy Generation
Facilities permitted by this Section 4.j(2) are located within a Building Envelope. Any
other Alternative Energy Generation Facilities may only be constructed with the prior
written approval of Grantee in Grantee’s sole discretion. Without limiting Grantee’s right
to withhold such approval in its sole discretion, factors that Grantee may consider in
determining whether to grant such approval shall include but not be limited to (a) whether
the installation and siting would substantially diminish or impair the Conservation
Values, (b) the physical impact of the proposed facility on the Conservation Values, (c)
the feasibility of less impactful alternatives, and (d) such other factors as Grantee may
determine are relevant to the decision. The construction of Alternative Energy Generation
Facilities that are not for use primarily in conjunction with those activities permitted by
this Deed are prohibited anywhere on the Property. Nothing in this Section 4.j(2) shall be
construed as permitting the construction or establishment of a wind farm or commercial
solar energy production facility.
(ii) Any energy generated by Alternative Energy Generation
Facilities constructed in accordance with this Section 4.j(2) that is incidentally in excess
of Grantor’s consumption may be sold, conveyed, or credited to a provider of retail
electric service to the extent permitted by Colorado law.
(iii) In the event of technological changes or legal changes that
make “expanded” Alternative Energy Generation Facilities more compatible with I.R.C.
Section 170(h) or any applicable successor law, Grantee in its sole discretion may
approve expanded Alternative Energy Generation Facilities that would not substantially
diminish or impair the Conservation Values. For the purposes of this Section 4.j(2)(iii),
the term “expanded” shall mean the development of Alternative Energy Generation
Facilities to an extent that is greater than the level permitted by Sections 4.j(2)(i) and
4.j(2)(ii).
l. Animal Control. Grantor shall be allowed to control any wildlife species that
becomes a threat to the purposes of this easement or to human health and safety, by any
appropriate means. Control of prairie dogs and other animals but shall comply with the
requirements for the use of pesticides or otherwise related to the management of prairie dogs
and other animals. Grantor shall consult with Grantee in advance of taking any action to
control, eradicate, or relocate prairie dogs, and any such action shall be consistent with
Grantee's requirements associated with the protection of the Conservation Values of the
Property or the purposes of this Easement. In any event, when using pesticides to control
animal species on the Property, Grantor shall use only EPA-approved pesticides in approved
amounts properly applied to appropriate habitats. Grantee encourages establishment and
retention of prairie dogs on the Property. Prairie dog visual barriers may be installed to
confine the prairie dog colony to a portion of the Property. Planting of native trees, shrubs,
and other native plants to enhance wildlife habitat in appropriate locations on the Property
are encouraged, but will be permitted only with the consent of the Grantee.
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5. Prohibited and Restricted Uses. Any activity on or use of the Property inconsistent
with the Purpose is prohibited. Without limiting the generality of the foregoing, the
following activities and uses are expressly prohibited or restricted as set forth below:
a. Development Rights. To fulfill the Purpose, Grantor conveys to Grantee
all development rights, except those expressly reserved by Grantor in this Deed, deriving
from, based upon or attributable to the Property in any way, including but not limited to
all present and future rights to divide the Property for the purpose of development into
residential, commercial or industrial lots or units or to receive density or development
credits for the same for use off of the Property (“Grantee’s Development Rights”). The
Parties agree that Grantee’s Development Rights shall be held by Grantee in perpetuity in
order to fulfill the Purpose, and to ensure that such rights are forever released, terminated
and extinguished as to Grantor, and may not be used on or transferred off of the Property
to any other property or used for the purpose of calculating density credits or permissible
lot yield of the Property or any other property.
b. Residential, Non-Residential and Minor Non-Residential Improvements.
Grantor shall not construct or place any Residential Improvements, Non-Residential
Improvements or Minor Non-Residential Improvements on the Property except in
accordance with Section 4.f of this Deed.
c. Recreational and Commercial Improvements. Except for the trails and
related facilities permitted hereunder, Grantor shall not construct or place any new
recreational improvement on the Property, including but not limited to athletic fields, golf
courses or ranges, race tracks, airstrips, helicopter pads, or shooting ranges. Grantor shall
not construct or place any new commercial improvement on the Property.
d. Removal of Vegetation and Timber Harvesting. Except as otherwise set
forth in this Deed, Grantor shall not remove any vegetation, including shrubs and trees, or
harvest any timber from the Property except in accordance with Section 4.c(3).
e. Mineral Extraction. As of the Effective Date, Grantor owns all of the coal,
oil, gas, hydrocarbons, sand, soil, gravel, rock 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
14
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.11
(2) Oil and Gas. Grantor, or a third party permitted by Grantor, may explore
for and extract oil and gas owned in full or in part by Grantor, provided Grantor ensures
that such activities are conducted in a manner that does not constitute surface mining and
complies with the following conditions:
(i) The exploration for or extraction of oil, gas and other
hydrocarbons is conducted in accordance with a plan (the “Oil and Gas Plan”), prepared
at Grantor’s expense and approved in advance by Grantee. The Oil and Gas Plan shall
describe: (a) the specific activities proposed; (b) the specific land area to be used for well
pad(s), parking, staging, drilling, and any other activities necessary for the extraction of
oil and gas, and the extent of the disturbance of such land area before and after
reclamation; (c) the location of facilities, equipment, roadways, pipelines and any other
infrastructure to be located on the Property; (d) the method of transport of oil or gas
produced from the Property; (e) the method of disposal of water, mining byproducts and
hazardous chemicals produced by or used in the exploration and development of the oil
or gas; (f) the proposed operation restrictions to minimize impacts on the Conservation
Values, including noise and dust mitigation and any timing restrictions necessary to
minimize impacts to wildlife; (g) the reclamation measures necessary to minimize
disturbance to and reclaim the surface of the Property, including restoring soils to the
original contours and replanting and re-establishing native vegetation using specific seed
mixes and processes to ensure successful re-vegetation of the Property, including and in
addition to those measures required by law; and (h) remedies for damages to the
Conservation Values.
(ii) No tank batteries, refineries, secondary production
facilities, compressors, gas processing plants, or other similar facilities may be located on
the Property.
(iii) Areas of surface disturbance shall be mitigated promptly in
accordance with the Oil and Gas Plan.
(iv) Travel for the purpose of oil or gas development shall be
restricted to existing roads or to new roads approved in advance in writing by Grantee as
part of the Oil and Gas Plan.
11 This paragraph is only appropriate where Grantor has reserved limited development and/or road
construction rights. It should be deleted if there is no reserved development on the Property.
15
(v) Well facilities and pipelines shall either be placed
underground, or screened, or concealed from view using existing topography, existing
native vegetation, newly planted but native vegetation, and/or use of natural tone
coloring. Pipelines shall be located along or under existing roadways to the maximum
extent possible.
(vi) Drilling equipment may be located above ground without
concealment or screening, provided that such equipment shall be promptly removed after
drilling is completed.
(vii) Any soil or water contamination due to the exploration for
or extraction of oil or gas must be promptly remediated at the expense of Grantor.
(viii) Any water, mining byproducts or hazardous chemicals
produced by or used in the exploration and development of the oil or gas shall not be
stored or disposed of on the Property.
(ix) Flaring to enhance oil production is prohibited; flaring for
emergencies or operational necessity is permitted.
(x) Grantee shall be released and, to the extent permitted by
law, indemnified and held harmless from any liabilities, damages, or expenses resulting
from any claims, demands, costs or judgments arising out of the exercise of any rights by
Grantor, any lessees or other third parties relating to the exploration for or extraction of
oil, gas or hydrocarbons.
(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 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.12 Any Mineral Document shall require that Grantor provide 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
12 If there is an active oil and gas lease on the Property, you will need to consult with Grantee about
drafting certain additional protections.
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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.
f. Trash. The dumping or accumulation of any kind of trash or refuse on the
Property, including but not limited to household trash and hazardous chemicals, is
prohibited. Limited dumping or accumulation of other agriculture-related trash and refuse
produced on the Property is permitted, provided that such dumping does not substantially
diminish or impair the Conservation Values and is confined within a total area less than
one-quarter acre at any given time. This Section 5.f shall not be interpreted to prevent the
storage of agricultural products and by-products on the Property in accordance with all
applicable government laws and regulations.
g. Motorized Vehicles. Motorized vehicles may be used only in conjunction
with activities permitted by this Deed and in a manner that is consistent with the Purpose.
Off-road vehicle courses for snowmobiles, all-terrain vehicles, motorcycles, or other
motorized vehicles are prohibited.
h. Commercial or Industrial Activity.
(1) No industrial uses shall be allowed on the Property. Commercial
uses are allowed, as long as they are conducted in a manner that is consistent with I.R.C.
§ 170(h) and the Purpose. Without limiting other potential commercial uses that meet the
foregoing criteria, the following uses are allowed:
(i) Breeding and grazing livestock, such as cattle, horses,
sheep, and similar animals;
(2) The foregoing descriptions of allowed commercial uses
notwithstanding, commercial feed lots and other intensive growth livestock farms, such
as dairy, swine, or poultry farms, are inconsistent with the Purpose and are prohibited.
For purposes of this Deed, "commercial feed lot" is defined as a permanently constructed
confined area or facility within which the Property is not grazed or cropped annually, and
which is used and maintained for purposes of engaging in the commercial business of the
reception and feeding of livestock.
i. Signage or Billboards. No commercial signs, billboards, awnings, or
advertisements shall be displayed or placed on the Property, except for appropriate and
customary ranch or pasture identification signs, “for sale” or “for lease” signs alerting the
public to the availability of the Property for purchase or lease, “no trespassing” signs,
17
interpretive, directional, waypoint signage, and signs informing the public of the status of
ownership. Any such signs shall be located and designed in a manner consistent with the
Purpose.
6. Land Management / Management Plan. Grantor and Grantee acknowledge that the
preservation and protection of the Conservation Values as contemplated under this Deed
require careful and thoughtful stewardship of the Property. To facilitate periodic
communication between Grantor and Grantee about management issues that may impact
the Conservation Values, the Property shall be operated and managed in accordance with
a “Management Plan” jointly agreed upon by Grantor and Grantee on or before the
Effective Date. The Parties shall review the Management Plan at least every five years
and update it if either Party determines an update is necessary.
7. Grantor Notice and Grantee Approval. The purpose of requiring Grantor to notify
Grantee prior to undertaking certain permitted activities is to afford Grantee an
opportunity to ensure that the activities in question are designed and carried out in a
manner consistent with the Purpose. Whenever notice is required, Grantor shall notify
Grantee in writing within a reasonable period of time prior to the date Grantor intends to
undertake the activity in question. The notice shall describe the nature, scope, design,
location, timetable, and any other material aspect of the proposed activity in sufficient
detail to permit Grantee to make an informed judgment as to its consistency with the
Purpose. Where Grantee's approval is required, Grantor shall not undertake the requested
activity until Grantor has received Grantee’s approval in writing. Grantee shall grant or
withhold its approval in writing within the time frame described in Paragraph 3d above,
following receipt of Grantor’s written request and sufficient supporting details as
described above. Grantee's approval may be withheld only upon Grantee’s reasonable
determination that the activity as proposed is not consistent with the Purpose or the
express terms of this Deed, unless this Deed provides that approval for a particular
request may be withheld in the sole discretion of the Grantee.
8. Enforcement. The Grantee shall have the right to prevent and correct or require
correction of violations of the terms of this Deed and the purposes of the Easement. If
Grantee finds what it believes is a violation of this Deed, Grantee shall immediately
notify the Grantor in writing of the nature of the alleged violation. Upon receipt of this
written notice, Grantor shall either:
a. Restore the Property to its condition prior to the violation; or
b. Provide a written explanation to Grantee of the reason why the alleged
violation should be permitted, in which event the Parties agree to meet as soon as
possible to resolve their differences. If a resolution cannot be achieved at the meeting, the
Parties may meet with a mutually acceptable mediator to attempt to resolve the dispute.
Grantor shall discontinue any activity that could increase or expand the alleged violation
during the mediation process. If Grantor refuses to undertake mediation in a timely
manner or should mediation fail to resolve the dispute, Grantee may, at its discretion,
take appropriate legal action. Notwithstanding the foregoing, when Grantee, in its sole
18
discretion, determines there is an ongoing or imminent violation that could irreversibly
diminish or impair the Conservation Values, Grantee may, at its sole discretion, take
appropriate legal action without pursuing mediation, including but not limited to seeking
an injunction to stop the alleged violation temporarily or permanently or to require the
Grantor to restore the Property to its prior condition.
9. Costs of Enforcement. Grantor shall pay any costs incurred by Grantee in enforcing
the terms of this Deed against Grantor, including without limitation costs and expenses of
suit, attorney fees and any costs of restoration necessitated by Grantor’s violation of the
terms of this Deed. If the deciding body determines that Grantor has prevailed in any
such legal action, then each Party shall pay its own costs and attorney fees. However, if
the deciding body determines that Grantee’s legal action was frivolous or groundless,
Grantee shall pay the Grantor’s costs and attorney fees in defending the legal action.
10. No Waiver or Estoppel. Enforcement of the terms of this Deed shall be in the
Grantee’s discretion. If the Grantee does not exercise, or delays the exercise of, its rights
under this Deed in the event of a violation of any term, such inaction or delay shall not be
deemed or construed to be a waiver by Grantee of such term or of any subsequent
violation of the same or any other term of this Deed or of any of Grantee's rights under
this Deed. Grantor waives any defense of laches, estoppel, or prescription, including the
one-year statute of limitations for commencing an action to enforce the terms of a
building restriction or to compel the removal of any building or improvement because of
the violation of the same under C.R.S. § 38-41-119, et seq.
11. Acts Beyond Grantor’s Control. Nothing contained in this Deed shall be construed
to entitle Grantee to bring any action against Grantor for any injury to or change in the
Property resulting from causes beyond Grantor’s control, including without limitation
fire, flood, storm, and earth movement, or from any prudent action taken by Grantor
under emergency conditions to prevent, abate, or mitigate significant injury to the
Property resulting from such causes. Notwithstanding the foregoing, Grantor shall take
reasonable efforts to prevent third parties from performing, and shall not knowingly
allow third parties to perform, any act on or affecting the Property that is inconsistent
with the Purpose.
12. Access. No right of access by the general public to any portion of the Property is
conveyed by this Deed.
13. Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs
and liabilities of any kind related to the ownership, operation, upkeep, and maintenance
of the Property, including weed control and eradication and maintaining adequate
comprehensive general liability insurance coverage. Grantor shall keep the Property free
of any liens arising out of any work performed for, materials furnished to, or obligations
incurred by Grantor.
14. Taxes. Grantor shall pay before delinquency all taxes, assessments, fees, and
charges of whatever description levied on or assessed against the Property by competent
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authority (collectively “Taxes”), including any Taxes imposed upon, or incurred as a
result of, this Deed, and shall furnish Grantee with satisfactory evidence of payment upon
request.
15. Liability. Each party is responsible for the consequences of its own negligence
and that of its officers and employees. Nothing in this Deed shall be construed as giving
rise to any right or ability in Grantee, nor shall Grantee have any right or ability, to
exercise physical or managerial control over the day-to-day operations of the Property, or
otherwise to become an operator with respect to the Property within the meaning of The
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, or any similar law or regulation. Nothing herein is intended as a waiver of the
provisions of the Colorado Governmental Immunity Act, Section 24-10-101 et seq.
C.R.S.
16. Real Property Interest. The conservation easement interest created by this Deed
constitutes a real property interest immediately vested in Grantee. The Parties stipulate
that this conservation easement interest (which includes the value of Grantee’s
Development Rights) has a fair market value equal to Forty-seven and a half percent
(47.5%) of the full unencumbered fair market value of the Property (the “Easement
Value Percentage”). The values at the time of this Deed shall be those values used to
calculate the deduction for federal income tax purposes allowable by reason of this grant,
pursuant to I.R.C. § 170(h), whether or not Grantor claims any deduction for federal
income tax purposes. The Easement Value Percentage shall remain constant.
17. Condemnation or Other Extinguishment. If this Deed is taken, in whole or in part,
by exercise of the power of eminent domain (“Condemnation”), or if circumstances
arise in the future that render the Purpose impossible or impractical to accomplish, this
Deed can only be terminated, whether in whole or in part, by judicial proceedings in a
court of competent jurisdiction. Each Party shall promptly notify the other Party in
writing when it first learns of such circumstances. Grantee shall be entitled to full
compensation for its interest in any portion of this Deed that is terminated as a result of
Condemnation or other proceedings. Grantee’s proceeds shall be an amount at least equal
to the Easement Value Percentage multiplied by the value of the unencumbered fee
simple interest (excluding the value of any improvements) in the portion of the Property
that will no longer be encumbered by this Deed as a result of Condemnation or
termination. Grantor shall not voluntarily accept proceeds equal to less than the full fair
market value of the affected Property unrestricted by this Deed without the approval of
Grantee. Grantee shall use its proceeds in a manner consistent with the conservation
purposes of this Deed. Grantee's remedies described in this Section 17 shall be
cumulative and shall be in addition to any and all remedies now or hereafter existing at
law or in equity, including the right to recover any damages for loss of Conservation
Values as described in C.R.S. § 38-30.5-108.
18. Assignment.
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a. This Deed is transferable, but Grantee may assign its rights and
obligations under this Deed only to an organization that:
(1) is a qualified organization at the time of transfer under I.R.C. §
Section 170(h) as amended (or any successor provision then applicable) and the
applicable regulations promulgated thereunder;
(2) is authorized to acquire and hold conservation easements under
Colorado law;
(3) agrees in writing to assume the responsibilities imposed on
Grantee by this Deed; and
b. If Grantee desires to transfer this Deed to a qualified organization having
similar purposes as Grantee but Grantor has refused to approve the transfer, Grantee may
seek an order by a court with jurisdiction to transfer this Deed to another qualified
organization having similar purposes that agrees to assume the responsibility imposed on
Grantee by this Deed, provided that Grantor shall have adequate notice of and an
opportunity to participate in the court proceeding leading to the court’s decision on the
matter.
c. Upon compliance with the applicable portions of this Section 18, the
Parties shall record an instrument completing the assignment in the property records of
the county or counties in which the Property is located. Assignment of the Deed shall not
be construed as affecting the Deed’s perpetual duration and shall not affect the Deed’s
priority against any intervening liens, mortgages, easements, or other encumbrances.
19. Subsequent Transfers. Grantor shall notify the Grantee in writing at least thirty
(30) days in advance of the proposed conveyance of any interest in all or any portion of
the Property, including any conveyance under threat of condemnation, and shall
incorporate by reference the terms and conditions of this Deed in any deed or other legal
instrument by which it divests itself of any interest in all or a portion of the Property,
except conveyance of a leasehold interest that is no longer than one year in duration or an
agricultural lease, that is otherwise consistent in all respects with the terms of this Deed.
The failure of Grantor to perform any act required by this Section 19 shall not impair the
validity of this Deed or limit its enforceability in any way.
20. Notices. Any notice, demand, request, consent, approval, or communication that
either Party is required to give to the other in writing shall be either served personally or
delivered by (a) certified mail, with return receipt requested; or (b) a commercial delivery
service that provides proof of delivery, addressed as follows:
To Grantor:
City of Fort Collins
Natural Areas Department
c/o John Stokes, Natural Areas Director
P.O. Box 580
21
Fort Collins, CO 80522
To Grantee:
Larimer County
or to such other address as either Party from time to time shall designate by written notice
to the other.
21. Grantor’s Title Warranty. Grantor warrants that Grantor has good and sufficient
title to the Property and Grantor has access to the Property for the purposes granted or
permitted to Grantee in this Deed, and Grantor promises to defend the same against all
claims whatsoever. Grantor’s warranty of title is further subject to the encumbrances set
forth on Exhibit D, attached hereto and incorporated herein by this reference.
22. Subsequent Liens on the Property. No provisions of this Deed shall be construed
as impairing the ability of Grantor to use this Property as collateral for subsequent
borrowing, provided that any deed of trust, mortgage or lien arising from such a
borrowing shall not encumber less than all of the Property, and shall be subordinate to
this Deed for all purposes so that any such instrument expressly shall be deemed to have
been recorded after this Deed and so that any foreclosure of such deed of trust, mortgage
or lien shall not affect any provision of this Deed, including without limitation its
perpetual nature, the payment of proceeds as described in Section 17 above, and the
limitation of Section 5.e.
23. Recording. Grantee shall record this Deed in a timely fashion in the official
records of each county or counties in which the Property is situated, and may re-record it
at any time as may be required to preserve its rights in this Deed.
24. Environmental Attributes. Unless otherwise provided in this Deed, Grantor
reserves all Environmental Attributes associated with the Property. “Environmental
Attributes” shall mean any and all tax or other credits, benefits, renewable energy
certificates, emissions reductions, offsets, and allowances (including but not limited to
water, riparian, greenhouse gas, beneficial use, and renewable energy), generated from or
attributable to the conservation, preservation and management of the Property in
accordance with this Deed. Nothing in this Section 24 shall modify the restrictions
imposed by this Deed or otherwise be inconsistent with the Purpose.
25. Tax Benefits. Grantor acknowledges that Grantor is responsible for obtaining legal
and accounting counsel to advise Grantor regarding the applicability of federal or state
tax benefits that might arise from the bargain sale (sale at less than fair market value) or
donation of the Deed. Grantee makes no representation or warranty that Grantor will
receive tax benefits for the bargain sale or donation of the Deed.
26. Deed Correction. The Parties shall cooperate to correct mutually acknowledged
errors in this Deed (and exhibits), including typographical, spelling, or clerical errors.
The Parties shall make such corrections by written agreement.
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27. Effective Date. The Effective Date of this Deed shall be the date and year first
written above.
28. General Provisions.
a. Controlling Law. The interpretation and performance of this Deed shall be
governed by the laws of the State of Colorado.
b. Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Deed shall be liberally construed in favor of the grant to effect the
Purpose and the policy and purpose of C.R.S. § 38-30.5-101, et seq. If any provision in
this Deed is found to be ambiguous, an interpretation consistent with the Purpose that
would render the provision valid shall be favored over any interpretation that would
render it invalid.
c. Severability. If any provision of this Deed, or the application thereof to
any person or circumstance, is found to be invalid, it shall be deemed severed from this
Deed, and the balance of this Deed shall otherwise remain in full force and effect.
d. Entire Agreement. The Recitals above are a material part of this Deed and
are incorporated into this Deed. This Deed sets forth the entire agreement of the Parties
with respect to the grant of a conservation easement over the Property and supersedes all
prior discussions, negotiations, understandings, or agreements relating to the grant, all of
which are merged in this Deed.
e. Joint Obligation. The obligations imposed upon Grantor and Grantee in
this Deed shall be joint and several if more than one entity or individual holds either
interest at any given time. If there is more than one owner of the Property at any time, the
obligations imposed by this Deed upon the owners shall be joint and several upon each of
the owners of the Property.
f. Non-Merger. A merger of this Deed and the fee title to the Property cannot
occur by operation of law. No merger shall be deemed to have occurred hereunder or
under any documents executed in the future affecting this Easement, unless the parties
expressly state that they intend a merger of estates or interests to occur.
g. Successors. The covenants, terms, conditions, and restrictions of this Deed
shall be binding upon, and inure to the benefit of, the Parties and their respective personal
representatives, heirs, successors, and assigns and shall continue as a servitude running in
perpetuity with the Property.
h. Termination of Rights and Obligations. Provided a transfer is permitted by
this Deed, a Party's rights and obligations under the Deed terminate upon transfer of the
Party's interest in the Deed or Property, except that liability for acts or omissions
occurring prior to transfer shall survive transfer.
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i. Captions. The captions in this Deed have been inserted solely for
convenience of reference and are not a part of this Deed and shall have no effect upon
construction or interpretation.
j. No Third-Party Beneficiaries. This Deed is entered into by and between
Grantor and Grantee and is solely for the benefit of Grantor and Grantee and their
respective successors and assigns for the purposes set forth in this Deed. The enforcement
of the terms and conditions of this Deed and all rights of action relating to such
enforcement, shall be strictly reserved to the parties. Nothing contained in this Deed shall
give or allow any claim or right of action whatsoever by any other third person. It is the
express intention of the Parties that any person or entity, other than the Parties, receiving
services or benefits under this Deed shall be deemed an incidental beneficiary only.
k. Amendment. If circumstances arise under which an amendment to or
modification of this Deed or any of its exhibits would be appropriate, Grantor and
Grantee may jointly amend this Deed so long as the amendment (i) is consistent with the
Conservation Values and Purpose of this Deed (ii) does not affect the perpetual duration
of the restrictions contained in this Deed, (iii) does not affect the qualifications of this
Deed under any applicable laws, and (iv) complies with Grantee’s procedures and
standards for amendments (as such procedures and standards may be amended from time
to time). Any amendment must be in writing, signed by the Parties, and recorded in the
records of the Clerk and Recorder of the county in which the Property is located. In order
to preserve the Deed’s priority, the Grantee may obtain subordinations of any liens,
mortgages, easements, or other encumbrances, and the Grantee may require a new title
policy. For the purposes of this paragraph, the term “amendment” means any instrument
that purports to alter in any way any provision of or exhibit to this Deed. Nothing in this
Section 28.k shall be construed as requiring Grantee to agree to any particular proposed
amendment.
l. Change of Conditions or Circumstances. A change in the potential
economic value of any use that is prohibited by or inconsistent with this Deed, or a change
in any current or future uses of neighboring properties, shall not constitute a change in
conditions or circumstances that make it impossible or impractical for continued use of the
Property, or any portion thereof, for conservation purposes and shall not constitute grounds
for terminating the Deed in whole or in part. In conveying this Deed, the Parties have
considered the possibility that uses prohibited or restricted by the terms of this Deed may
become more economically valuable than permitted uses, and that neighboring or nearby
properties may in the future be put entirely to such prohibited or restricted uses. It is the
intent of Grantor and Grantee that any such changes shall not be deemed to be
circumstances justifying the termination or extinguishment of this Deed, in whole or in
part. In addition, the inability of Grantor, or Grantor’s heirs, successors, or assigns, to
conduct or implement any or all of the uses permitted under the terms of this Deed, or the
unprofitability of doing so, shall not impair the validity of this Deed or be considered
grounds for its termination or extinguishment, in whole or in part.
m. Authority to Execute. Each Party represents to the other that such Party
has full power and authority to execute, deliver, and perform this Deed, that the
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individual executing this Deed on behalf of each Party is fully empowered and authorized
to do so, and that this Deed constitutes a valid and legally binding obligation of each
Party enforceable against each Party in accordance with its terms.
n. Obligations Subject to Annual Appropriation. Any obligations of either
Party under this Deed for fiscal years after the year of this Deed are subject to annual
appropriation by such Party’s governing body, in its sole discretion, of funds sufficient
and intended for such purposes.
o. Good Faith Negotiation/Mediation. Where this Deed requires the consent
of either party, such consent shall not be unreasonably withheld, conditioned, delayed or
denied. Where this Deed specifies that a decision requires the mutual agreement of the
parties, the parties shall be obligated to make best efforts to negotiate in good faith to
reach mutual agreement consistent with the Conservation Values and purposes of the
Easement. In the event that such efforts by the parties fail to result in mutual agreement
through negotiation, the parties agree to attempt to resolve their dispute through
mediation. Either party may commence the mediation process by providing the other
party with written notice setting forth the subject of the dispute, and the solution
requested. Within ten (10) days after the receipt of the notice, the other party shall
deliver a written response to the initiating party’s notice. The parties agree to meet with a
mutually acceptable mediator to attempt to resolve the dispute. The initial mediation
session shall be held within thirty (30) days after the initial notice, unless the selected
mediator cannot accommodate the parties within that time. If the parties cannot agree
upon a mediator, the Grantee will provide the Grantor with a list of at least three
professional mediation organizations in the Fort Collins/Denver area that are not
affiliated with the City of Fort Collins. The Grantor will select an organization from the
list within ten (10) days of receipt of the list, and the selected organization will be asked
to choose a mediator for the parties. The parties agree to share equally the costs and
expenses of the mediation, which shall not include the expenses incurred by each party
for its own legal representation in connection with the mediation. The provisions of this
subparagraph may be enforced by any court of competent jurisdiction, and the party
seeking enforcement shall be entitled to an award of all costs, fees and expenses,
including reasonable attorneys’ fees and other legal costs, to be paid by the party against
whom enforcement is ordered.
p. No Waiver of Governmental Immunity. Anything else in this Deed to the
contrary notwithstanding, no term or condition of this Deed shall be construed or
interpreted as a waiver, either express or implied, of any of the immunities, rights,
benefits or protection of the Colorado Governmental Immunity Act, C.R.S. §24-10-101,
et seq., as amended or as may be amended in the future (including, without limitation,
any amendments to such statute, or under any similar statute which is subsequently
enacted) (“CGIA”), subject to any applicable provisions of the Colorado Constitution and
applicable laws. The Parties acknowledge that liability for claims for injury to persons or
property arising out of the negligence of a government entity, its members, officials,
agents and employees may be controlled and/or limited by the provisions of the CGIA.
The Parties agree that no provision of this Deed shall be construed in such a manner as to
25
reduce the extent to which the CGIA limits the liability of any governmental party, its
members, officers, agents and employees.
TO HAVE AND TO HOLD unto Grantee, its successors, and assigns forever.
IN WITNESS WHEREOF, Grantor and Grantee have executed this Deed of
Conservation Easement as of the Effective Date.
GRANTOR:
CITY OF FORT COLLINS
a Colorado municipal corporation
By:____________________________
Wade Troxell , Mayor
ATTEST:
________________________
City Clerk
________________________
Printed Name
Approved as to Form:
_______________________
Senior Assistant City Attorney
________________________
Printed Name
STATE OF COLORADO
) ss.
COUNTY OF LARIMER
The foregoing instrument was acknowledged before me this _____ day of __________,
2019, by Wade Troxell, as Mayor, of the City of Fort Collins.
Witness my hand and official seal
My commission expires:
______________________________
Notary Public
26
GRANTEE:
LARIMER COUNTY
By:
STATE OF COLORADO )
) ss
COUNTY OF ____________ )
The foregoing instrument was acknowledged before me this day of
____________, 2018, by _____________________.
Witness my hand and official seal.
My Commission expires:
_______________________________
Notary Public
27
[Exhibits A and B to come following Minor Land Division]