HomeMy WebLinkAbout112 - 10/18/2016 - AUTHORIZING EXECUTION OF THE CRIBARI-GHEEN/SCHUMAN AMENDED AND RESTATED DEED OF CONSERVATION EASEMEN1
ORDINANCE NO. 112, 2016
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING EXECUTION OF THE CRIBARI-GHEEN/SCHUMAN
AMENDED AND RESTATED DEED OF CONSERVATION EASEMENT
WHEREAS, in 2005 Chris Cribari ("Cribari") granted the City a conservation easement
the "Conservation Easement") on a parcel of property he owned south of Timnath (the
Property"); and
WHEREAS, the Conservation Easement is managed by the City's Natural Areas
Department; and
WHEREAS, in 2006, Cribari divided the Property into two parcels and sold one parcel
Parcel I") to Paradise Ranch, LLC, a company owned by Alex Schuman ("Schuman"), and the
other parcel ("Parcel II") to Kenneth and Deborah Gheen ("Gheens"), with both sales being
subject to the Conservation Easement; and
WHEREAS, in 2013, the Gheens put Parcel II up for sale, and through that process the
City and the Gheens became aware that some aspects of the Conservation Easement were unclear
as they related to the management issues and consequences of the Property being owned by two
separate parties instead of just one owner; and
WHEREAS, Natural Areas staff has been working with Schuman and the Gheens to
revise the Conservation Easement to clarify the activities permitted on each parcel; the extent
and location of where residential development could occur on each parcel; and to clarify that
each parcel can be managed separately, rather than having either parcel owner responsible or
liable to the City for actions or activities of the other parcel owner; and
WHEREAS, a copy of the proposed Amended and Restated Deed of Conservation
Easement for the Property is attached as Exhibit "A" and incorporated herein by reference (the
Amended Conservation Easement"); and
WHEREAS, the Natural Areas Department's Conservation Easement Amendment Policy.
and Procedure requires that proposed amendments to City-owned conservation easements
receive formal review and a recommendation by the Land Conservation and Stewardship Board
and approval by the City Council by ordinance after a public hearing; and
WHEREAS, at its regular meeting on September 14, 2016, the Land Conservation and
Stewardship Board voted unanimously to recommend that the City Council approve the
Amended Conservation Easement.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF,
FORT COLLINS as follows:
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Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in'the recitals set forth above.
Section 2. That the City Manager is hereby authorized to execute the Amended
Conservation Easement in substantially the form attached as ,Exhibit A, along with such
additional terms and conditions as the City Manager, in consultation with the City Attorney,
detennines to be necessary or appropriate to protect the interests of the City or effectuate the
purposes of this Ordinance, including, but not limited to, any necessary changes to the legal
description of the parcels conserved by the Amended Conservation Easement, as long as such
changes do not materially reduce the size or change the character of the property.
Introduced, considered favorably on first reading, and ordered published this 4th day of
October, A.D. 2016, and to be presented for final passage on the 18th day of October, A.D. 2016.
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ATTEST:
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City Clerk
Passed and adopted on final reading on the 18th day of October, A.D. 2016.
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EXHIBIT A
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AMENDED AND RESTATED DEED OF CONSERVATION EASEMENT
Cribari Property"
THIS AMENDED AND RESTATED DEED OF CONSERVATION EASEMENT
Amended Conservation Easement" or "Deed")) is made this day of
2016, by PARADISE RANCH, LLC, a Colorado Limited Liability Company ("Paradise") as to
Parcel I, and KENNETH M. GHEEN AND DEBORAH F. GHEEN ("Gheen") as to Parcel II
collectively, "Owners"), in favor of the CITY OF FORT COLLINS, COLORADO, a municipal
corporation ("City"),
RECITALS :
WHEREAS, Paradise is the sole owner in fee simple of certain real property in Larimer
County more particularly described as Parcel I in Exhibit "A" attached hereto and incorporated
herein by this reference, and Gheen is the sole owner in fee simple of certain real property in
Larimer County, more particularly described in Exhibit "A" as Parcel 1I. Parcel I and Parcel II
are hereafter referred to collectively as "Parcels'.' or the "Property"; and
WHEREAS, the Property possesses scenic, open space, agricultural and natural values
collectively, "Conservation Values") of great importance to the City and to the people of Fort
Collins and the State of Colorado; and
WHEREAS,; the total acreage protected by this Conservation Easement is 76 acres; and
WHEREAS, by a deed of Conservation Easement dated March 16, 2005 and recorded in
the records of the Larimer County Clerk and Recorder on March 21, 2005 at Reception No.
2005-0021923, CHRIS CRIBARI, the Owners' predecessor in title to the Property, ("Cribari")
conveyed to the City the right to preserve and protect the Conservation Values of the Property in
perpetuity in accordance with the provisions of C.R.S. §38-30.5-101, et seq. (the "Easement");
and
WHEREAS, the Property was subsequently divided into Parcel I and Parcel II via the
Jack Hahn M.R.D. S-6-87 plat recorded July 21, 2006; and
WHEREAS, Paradise took ownership of Parcel I by Quit Claim Deed dated June 11,
2013 and Gheen took ownership of Parcel II by Warranty Deed dated April 19, 2006; and
WHEREAS, the Owners intend that the Conservation Values of the Property be
preserved and maintained in perpetuity by continuing the land use patterns of agriculture and
existing or lower density residential use on the Property; and
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WHEREAS, the Owners and the City intend by this Deed to serve the governmental;
conservation and agricultural policies set forth in 7 U.S.C. §4201 et seq., C.R.S. §35-1-101, et
seq., C.R.S. §38-30.5.101, et seq., and C.R.S. 33-1-101, et seq.; and
WHEREAS, the parties have agreed to amend the Easement in order to clarify and refine
certain terms within the Easement including but not limited to: the location of and allowable
types of structures within the second building envelope, updating the Exhibits, the process of
termination and extinguishment, the terms of subdivision, the oil and gas provisions and
facilitate management of the Easement on each of the Parcels by treating the Parcels
separately for purposes of the Easement; and
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WHEREAS, Section 22.J. of the Easement permits the parties to amend the Easement
as long as the amendment does not affect the qualifications of the Easement under any
applicable laws, is consistent with the conservation purposes in the Easement, and does not
affect its perpetual duration.
NOW, THEREFORE, in consideration of the above and the mutual covenants, terms,
conditions, and restrictions contained herein, and pursuant to the laws of the State of Colorado,
and in particular C.R.S. §38-30.5-101, et seq., the parties hereby agree that the terms of the
Easement are hereby amended and restated to read as follows:
1. Purposes.
A. The purposes of this Easement are to ensure that the Property will be
retained predominately in its scenic, open space, and agricultural use and to
prevent any use of the Property that will significantly impair or interfere with the
Conservation Values of the Property. The Owners intend that this Deed will
confine the use of the Property to activities that are not inconsistent,with these
purposes of this Easement. This Easement is intended to preserve the Property so
as to maintain the Conservation Values of the Property. The Property shall not be
used for activities that significantly diminish the Conservation Values or which
significantly impair the ability of the Property to be used for cropland, animal,
grazing, or restoration to native vegetation.
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B. The specific Conservation Values of the Property, as generally described
above, are documented in an inventory of relevant features of the Property to be
kept on file in the offices of the City and incorporated by this reference ("Baseline
Documentation"), which consists of a report, maps, photographs, and other
documentation that Cribari and the City agreed provided, collectively, an accurate
representation of the condition of the Property at the time of the original grant of
the Easement and which is intended to serve as an objective, thorough
nonexclusive,, information baseline for monitoring compliance with terms of this
Easement.
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2.Rights of the City. To accomplish the purposes of the Easement, the following
rights are conveyed to the City by this Deed:
A. To preserve and protect the Conservation Values of the Property;
B. To enter upon the Property at reasonable times in order to monitor the
Owners' compliance with and otherwise enforce the terms of this Deed.
Such entry shall be upon prior reasonable notice to. the Owners except
when the City has a reasonable basis to believe that a use of or activity on
the Property constitutes a violation of any of the terms of this Easement
Agreement, in which case the City may gain immediate access to the
Property without notice to document or 'prevent such violation. The City
shall not interfere with the Owners' use and quiet enjoyment of the
Property except as reasonably necessary to enforce this Easement
Agreement and exercise the City's rights hereunder; and
C. To prevent any activity on or use of the Property that is significantly
inconsistent with the purposes of the Easement and to require the
restoration of such areas or features of the Property that may be damaged
by inconsistent activity or use pursuant to paragraph 4 below; and
D. To require the restoration of such areas or features of the Property that
may be damaged by any inconsistent use or activity; and
E. To consult with the Owners regarding the negotiations of any and all
l agreements between either or both of the Owners 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, rights-of-way
agreements, ' surface use agreements, and lease agreements, but not
including agreements for services specifically related to the agricultural
and recreational operations of the Property. The Owners shall be
responsible for ensuring that any lessees comply with all terms of this
Easement while on the Property. Owners agree that the City shall have the
right to approve any such agreement described in the preceding sentence
prior to such agreement being executed. Nothing herein is intended to
require the City to approve any action or agreement that is inconsistent
with the terms of this Easement Agreement.
3. Land Management. Each Parcel of the Property shall be operated and managed in
accordance with a Land Management Plan for such Parcel prepared and accepted with the mutual
consent of the Owner of such Parcel and the City, which plan shall be updated'as necessary to
reflect improved knowledge of conservation of land and the Conservation Values and substantial
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new or changed conditions. Each Owner shall provide to the City each year a Land Management
update describing the status of operations and management of such Owner's Parcel in relation to
the approved plan, and advising the City of any changes in the management of such Parcel or
issues that the Owner has identified or anticipates may reasonably arise with regard to such
Parcel and the preservation of the Conservation Values. If nothing has changed since an
Owner's prior report, in lieu of'providing the update, such Owner may notify the City that
nothing has changed with regard to the management of such Owner's Parcel and that no new
issues have arisen or are anticipated to arise with regard to such Parcel and preservation of the
Conservation Values.
4.Use and Management of the Property. Any activity on or use of the Property
significantly inconsistent with any of the purposes of the Easement is prohibited. Without
limiting the generality of the foregoing, the following activities and uses are expressly
prohibited:
A. Construction of Buildings and Other Structures—Parcel I.
i. Single-Family Residential Dwellings. There is one existing
primary single-family residential dwelling with an attached garage on
Parcel I, located within a six (6)-acre building envelope in the northwest
corner of Parcel I and described on Exhibit' `B", attached to and
incorporated herein (the "Parcel I Building Area"). There is one existing
secondary residential dwelling on the Parcel. No additional residential
dwellings are permitted. Infrastructure normally associated with a single-
family residence may also be constructed within the Parcel I Building
Area, including but not limited to the following: driveway, sewage
disposal system, water supply, electric and phone transmission, propane,
and other similar residential services. Wherever practical, existing
roadways shall be used, and new roadways shall be limited to the
minimum reasonably necessary to serve the Parcel I Building Area, and
shall be located so as to preserve scenic views, protect natural resources,
minimize negative impact on agricultural operations, and prevent erosion.
ii. Repair and Replacement of Single Family Residential Dwelling.
The existing residential buildings described in Paragraph 4.A.i. may be
repaired and replaced at their permitted location without further
permission from the, City. Owner shall have the right to expand the
existing primary and secondary residential dwellings-on the Parcel to a
total square footage of no more than 3,720 square feet combined. The total
square footage limit of the residences does not include any basement area
or attached garages. .Permitted single-family residential dwellings may
also be relocated anywhere within the boundaries of the Parcel I Building
Area without further permission of the City. Prior to any such relocation of
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a single-family residential dwelling, the Owner shall notify City of such
relocation and provide the City with written plans describing the
relocation so that the City can update its records with at least thirty (30)
day advance notice prior to planned construction.
iii. Agricultural Structures and Improvements.
a.Major Agricultural Buildings. All existing major
agricultural buildings and structures (the "Agricultural
Improvements") are located within the Parcel I Building Area.
There are six agricultural buildings, including: a stable/horse barn,
horse arena/large barn, hay shed, and three
garage/shops/outbuildings. Construction, maintenance, and
replacement of the Agricultural Improvements are permitted
according to the Land Management Plan, or upon prior written
approval of the City. The Agricultural Improvements are only
permitted within the Parcel I Building Area. The Owner will notify
the City prior to any construction within the Parcel I Building
Area. Examples of Major Agricultural Buildings include barns,
greenhouses, arenas, shops, large sheds, grain and feed storage
facilities, etc.
b. Minor Agricultural Buildings. Construction of minor
agricultural structures solely designed for management or
protection of livestock or reasonably advantageous for agricultural
operations on Parcel I (such as small loafing sheds, water lines,
water tanks, pumps and/or well houses and other minor agricultural
structures and improvements) is permitted, provided that any such
agricultural structure requiring a building permit or exceeding
1,000 square feet in total floor area and not expressly provided for
in the Land Management Plan shall require prior written approval
by the City, in its reasonable discretion.
B. Construction of Buildings and Other Structures—Parcel II.
i. Single-Family Residential Dwellings. There is no existing single-
family residential dwelling on Parcel II. Not more than one (1) new
primary and one (1) secondary single-family residential dwellings may be
built on Parcel II within a four (4)-acre building envelope in the northern
half of Parcel II and described on Exhibit "C", attached to and
incorporated herein (the "Parcel II Building Area"). Until any structure is
constructed within the Parcel II Building Area, its location may be moved,
with approval by the Grantee, but must be located primarily on the northern
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half of the parcel. One primary residence and one secondary residence can
be built within the Parcel II Building Area with the total square footage of r
the footprint for the residences not exceeding 6,000 square feet. The total
square footage limit of the residences does not include any basement area
or attached garage. The two residential dwellings may be one-story or two-
story structures. No additional residential dwellings are permitted.
Infrastructure normally associated with a single-family residence may also
be constructed within the Parcel II Building Area, including but not limited
to the following: Driveway, sewage disposal system, water supply, electric
and phone transmission, propane, and other similar residential services.
Wherever practical, existing roadways shall be used, and new roadways
shall be limited to the minimum reasonably necessary to serve the Parcel II
Building Area, and shall be located so as to preserve scenic views, protect
natural resources, minimize negative impact on agricultural operations, and
prevent erosion, and shall not be paved except as allowed in Paragraph E
below.
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ii. Agricultural Structures and Improvements.
a.Major Agricultural Buildings. There are no existing major
agricultural buildings and structures (the "Agricultural
Improvements") located on Parcel II. Examples of Major
Agricultural Buildings include barns, greenhouses, shops, large
sheds, grain and feed storage facilities, detached garage, etc.
Construction, maintenance, and replacement of Agricultural
Improvements are permitted according to the Land Management
Plan, or upon prior written approval of the City. The Agricultural
Improvements are only permitted within the Parcel II Building
Area. The Owner will notify the City prior to any construction
within the ParceLII,Building Area.
b. Minor Agricultural Buildings. Construction of minor
agricultural structures solely designed for management or
protection of livestock or reasonably advantageous for agricultural
operations on Parcel II (such as small loafing sheds, water lines,
water tanks, pumps and/or well houses and other minor agricultural
structures and improvements) is permitted, provided that any such
agricultural structure requiring a building permit or exceeding
1,000 square feet in total floor area and not expressly provided for
in the Land Management Plan shall require prior written approval
by the City, in its reasonable discretion.
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C.Water feature. Development of a water source for cattle and
other livestock, such as a small pond, is permitted outside the
Building Areas.
C. Grazin,2. Livestock grazing shall be conducted in accordance with sound
stewardship and management practices. Grazing shall be managed so that the
overall condition of the Property is preserved at its baseline condition or better
and in accordance with the Natural Resources Conservation Service (MRCS) Field
Office Technical Guide. For the purposes of this Easement, "livestock" shall
mean cattle, horses, sheep, goats, llamas, alpaca, poultry and bison. The raising
of other livestock and/or game animals shall not be permitted unless specifically
approved by the City and described in the Land Management Plan. D_omestic pets
such as dogs and cats are allowed on the Property.
The City reserves the right to limit the stocking rate and/or grazing rotation on the
Property, including removing grazing livestock from the pastures, if the range
condition is below a "fair" rating, until such time as the range condition is
returned to an acceptable condition. As necessary, grazing rotation, monitoring
methods and requirements, and stocking rates will be detailed in the Land
Management Plan. In times of drought or other natural disasters, City and the
Owners will work together to manage the range to the best of their ability, even if
the condition would be rated below"fair".
D. Fences. The Owners may repair or replace existing fences, and new
fences may be built for purposes of reasonable and customary management of
cropland, livestock, and wildlife. Gates wide enough for emergency access may
be installed where necessary for cropland, pastureland, and wildlife habitat
maintenance vehicles. Construction of wildlife friendly fencing is preferable'
whenever possible.
E. Paving and Road Construction. No portion of the Parcels shall be paved
or otherwise covered with concrete, asphalt, or any other permanent paving
material, except; within the defined building envelopes and to provide one access
drive from the nearest County Road to each building envelope; and for such
public improvements as may be placed on the Property in accordance with
Paragraph 4.0. Unimproved access entrances off County Road 5 for farm and
emergency vehicles may remain in the location and general form and condition as
in the past; new internal dirt roads for cropland management may be created or
converted to cropland as necessary, provided that such internal roads are only for
the use of the Owners, residents and their guests. Said internal roads shall be
minimized in combination with any roads or access entrances otherwise
constructed on the Parcels, whether by the Owners or as public roads.
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F. Subdivision. Any further division or subdivision of title to the Parcels is
prohibited, other than conveyances to public entities for public roads or other
public improvements consistent with this Conservation Easement. Nothing in this
subparagraph shall be construed to prohibit joint ownership of the Parcels or
ownership of the Parcel(s) by an entity consisting of more than one member.
G. Timber Harvesting. Trees may be cut to control insects and disease, to
control invasive non-native species, and as necessary to prevent personal injury
and property damage. Commercial timber harvesting, except with regard to a tree
farm or tree nursery operation, on the Property shall be prohibited. Any tree farm
or tree nursery operation shall be permitted but shall not exceed five (5) acres in
land usage per Parcel without the prior approval of City, which approval shall not
be unreasonably withheld.
H. Mining. The mining or extraction of soil, sand, gravel, rock, or any other
mineral substance (including moss rock and flagstone) using any surface mining
method is prohibited, except for limited mining to the extent that the materials
mined for are used for agricultural operations on the Property, and except for oil
and gas exploration and extraction as permitted in paragraph I below. Where
extraction is permitted, the method of extraction must have a limited, localized
impact on the Property that will not substantially impair or impact the
Conservation Values of the Property, whether on a temporary or permanent basis.
No extraction permitted pursuant to this paragraph shall occur without prior
written notice to and approval of the City, which notice shall include a description
of the type of extraction, the areas within which such extraction shall occur, and
the anticipated impact thereof. Any agreement of the Owners with a third party
related to mining on the Property subsequent to the date of recording of this
Easement Agreement shall be expressly subject to the restrictions of this
Easement Agreement and shall contain terms consistent with the provisions of
this Easement Agreement, and any such agreement shall be provided to the City
in advance for the City's review and approval. This paragraph shall in any event
be interpreted so as to be no less restrictive than required by Section 170(h) of the
United States Internal Revenue Code and the Treasury Regulations adopted
pursuant thereto.
I.Oil and Gas. Oil and gas exploration and extraction is allowed if the
method of extraction is from another parcel, or is limited to the amount of
disturbance associated with such well, including access roads, does not exceed
one (1) acre of permanent disturbance and three (3) acres of temporary
disturbance, and thus has minimal impact on the Property. The Owners must
consult with the City on negotiation of any surface use agreement between the
Owners and any owner or lessee of mineral rights. For any oil and gas leases in
effect as of the date of this Easement, the Owners shall notify the City when
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beginning negotiations of surface use agreements or any other agreements with
the lessee regarding any new oil and gas operations on the Parcels, primarily so
that the City may help ensure that none of the Parcel's Conservation Values are
substantially diminished, materially impaired, or adversely impacted by the
operations, but also so that the City may share in surface impact payments to be
made by the lessee for its operations on the Parcel, since any operations by the
lessee will impair the Parcel's Conservation .Values that are protected by this
Easement, regardless of whether any such payments are due and payable by the
lessee pursuant to an agreement or pursuant to an award of damages resulting
from the lessee's use of the Parcel. (Note: The City does not receive a share of
any royalty payments from the production of oil or gas on the Property, only those
payments made as a result of damages to the surface or for any permanent/semi-
permanent impacts to the surface such as new roads or wellpads. The portion of
these applicable payments due to the City shall be proportionate to the City's real
property interest in the property, detailed in Paragraph 17.) Any drilling plan and
restoration plan must be acceptable to the City. Any future oil and gas leases by
the Owners or severed ownership interests must be subordinated to and made
subject to the requirements of this Easement.
J.Trash. The dumping or uncontained accumulation of any kind of trash or
refuse on the Property is prohibited. This subparagraph shall not be construed to
preclude the storage or disposal of agricultural products and byproducts on the
Property, provided such storage or disposal is performed in accordance with all
applicable governmental laws and regulations.
K. Commercial or Industrial Activity. No industrial or commercial uses shall
be allowed on the Property, except for agricultural related activities that don't
negatively impact the Conservation Values, all in accordance with all local and
federal regulations. Residences on the Property may be used for single-family
residential use only. Nothing in this Deed shall be construed to prohibit the
Owners from engaging in agricultural related activities or leasing a portion'of the
Property for crop production, training and boarding of horses, or for the grazing
of animals owned by others. The Owners or residents of the Property may carry
out in-home business activities on the Property provided that such activities are
contained within the existing buildings on the Property and provided that any
home business is in compliance with applicable governmental regulations.
L. , Hunting. Commercial hunting, shooting and trapping are prohibited.
Owners and their invited guests are permitted to engage in non-commercial
hunting, shooting or trapping that is in compliance with Federal, state and local
law, or hunting or trapping as required and conducted by Colorado Parks and
Wildlife for nuisance, dangerous, or diseased animals. Owners retain the right to
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maintain and use on the Property a non-commercial shooting range or target
practice area in compliance with Federal, state and local.law.
M. Pest and Weed Control; Signage. Requirements for the control and
eradication of weeds, prairie dogs, and other pests, and for the placement of
signage on the Parcels, shall be in accordance with all applicable laws and
regulations of Larimer County, except as expressly set forth herein. Only
billboards or advertisements identifying the agricultural operation and consistent
with the character of other signage in the area are allowed on the property. A sign
identifying the site as a Conservation Easement is required and will be supplied
by the City. Noxious weeds will be controlled on the property through various
techniques, which may include herbicides, mowing, or introduction of biological
control measures (e.g., thistle-eating insects) subject to the requirements of the
Colorado Noxious Weed Act and Larimer County Noxious Weed regulations. The
use of chemicals for weed and pest control shall be addressed in the Land
Management Plans for the Property, and Owners agree to cooperate with the City
in order to investigate and consider the use of possible mutually beneficial
alternatives for control of weeds and pests on the Property, taking into account the
environmental impacts as well as effectiveness of such alternatives. In any event,
the application of any fungicide, insecticide, herbicide, rodenticide, or other
chemicals shall be conducted strictly in accordance with any applicable local,
state, or federal laws.
N. Granting of Easements for Utilities and Roads. There are existing
easements on the Property as of the date of execution, and except as provided in
subparagraph O below, granting of easements on the Parcels for utilities or '
roads is prohibited if the utility or road will materially impact, impair or
interfere in an ,adverse manner with, the Conservation Values of the Parcel(s),
including the use of the Parcels for agriculture. Pursuant to paragraph' 18 below,
the City must be notified in writing not less than thirty (30) days in advance of
the proposed -conveyance of any easement on the Parcel. All such conveyances
are subject to the City's approval, which will not be unreasonably withheld.
O. Public Roads and Other Public Improvements. The installation or
construction of public road or street improvements, storm drainage culverts,
swales or other drainageways, or underground public utility improvements are not
prohibited by this Easement, provided that any such improvements are designed
and constructed in accordance with the adopted plans and policies for such
improvements of a governmental entity with the related jurisdiction and authority
over the Parcel and further provided that City is provided notice of such
installation or construction in accordance with the notice procedures set out in
Paragraph 6.
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P. Seeding and Planting. The parties acknowledge and agree that seeding
and planting on the Property with other than native grasses or other native plants,
shall be prohibited with the exception of crop plantings, wildlife plantings (non-
native tree and shrub species must be approved by the City). The Owners shall be
required to maintain the cropland and range condition of their respective Parcels
in a manner consistent with the Land Management Plan for such parcel and
otherwise consistent with generally accepted management practices for
conservation and sustenance of agricultural or grazing land.
5.Reserved Rights. The Owners reserve unto themselves and to their beneficiaries,
trustees, successors and assigns, all rights accruing from their ownership of the Property,
including the right to engage in or permit or invite others to engage in all uses of the Property
that are permitted hereunder and are not inconsistent with any of the purposes of the Easement or
with the conditions, restrictions or other terms of this Easement. Owners shall be and hereby are
permitted to engage in agricultural related activities that don't negatively impact the
Conservation Values of the Property.
6. Notice of Intention to Undertake Certain Permitted Actions. The purpose of
requiring the Owners to notify the City prior to undertaking certain.permitted activities is to
afford the City an opportunity to ensure that the activities in question are designed and carried
out in a manner consistent with all the terms and purposes of the Easement and the Conservation
Values of the Property. Except as otherwise expressly provided, whenever notice is required, an
Owner shall notify the City in writing not less than thirty (30) days prior to the date such Owner
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 City to make an informed judgment as to its consistency with the purposes of the
Easement.
7.City's Approval. Where the City's approval is required hereunder;the City shall
grant or withhold its approval in writing within twenty-one (21) days of receipt of an Owner's
written notice therefor. The City's approval may be withheld upon a reasonable determination by
the City that the action as proposed would be inconsistent with any term or purpose of the
Easement.
8. Enforcement. The City 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. The City may enter either or
both Parcels for the purpose of inspecting for violations. If the City finds what it believes is a
violation, the City shall notify, in writing, the Owner of each Parcel upon which the violation is
located of the nature of the alleged violation. Upon receipt of this written notice, the Owner
shall either: (a) restore the Parcel to its condition prior to the violation; or (b) provide a written
explanation to the City of the reason why the alleged violation should be permitted. In the event
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that the parties are in dispute as to the actions required of an Owner hereunder, the Owner and
City will meet as soon as possible to resolve the difference. If either the City or the Owner(s)
determines that mediation would be advantageous in connection with such meeting, or if a
resolution of this difference cannot be achieved at the meeting, both parties agree to make a
reasonable effort to work through and with a mutually acceptable mediator to attempt to resolve
the dispute. Notwithstanding the foregoing, when, in the City's opinion, an ongoing or imminent
violation could irreversibly diminish or impair the Conservation Values of the Property or will
not otherwise be resolved in a sufficiently prompt and effective manner, the City may, at its,
discretion, take such legal action and seek such legal or equitable remedies as it determines to be
appropriate or necessary. Such remedies may include, without limitation, an injunction to stop
an alleged-violation, temporarily or permanently, or an order requiring the Owner to restore its
Parcel to its condition prior to the alleged violation. Such Owner shall discontinue any activity
which could increase or expand the alleged violation during any mediation process or any legal
proceeding pertaining to the alleged violation.
9.Costs of Enforcement. Any costs incurred by the City in enforcing a breach of the
terms of this Deed against an Owner, including, without limitation, costs of suit and reasonable
attorneys' fees, and any costs of restoration necessitated by such Owner's violation of the terms
of this Deed, shall be borne by such Owner. If the Owner prevails in any action to enforce an
alleged breach of the terms of this Deed, the Owner's costs of suit, including, without limitation,
reasonable attorneys' fees, shall be borne by the City..
10. City's Discretion. Enforcement of the terms of this Deed shall be at the discretion
of the City, and any forbearance by the City to exercise its rights under this Deed in the event of
any breach of any term of this Deed by either Owner shall not be deemed or construed to be a
waiver by the City of such term or of any subsequent breach of the same or any other term of this
Deed of any of the City's rights under this Deed. No delay or omission by the City in the
exercise of any right or remedy upon any. breach by either Owner shall impair such right or
remedy or be construed as a waiver with respect to either Owner.
11. Waiver of Certain Defenses. Each of the Owners hereby waives any defense of
laches or prescription.
12. Acts Beyond Owners' Control. Nothing contained in this Deed shall be construed
to entitle the City to bring any action against the Owners for any injury to or change in the
Property resulting from causes beyond the Owners' control, including, without limitation, fire,
flood, drought, storm, landslides and seismic activity, or from any prudent action taken by the
Owners under emergency conditions to prevent, abate, or mitigate significant injury to the Parcel
resulting from such causes.
13. Access. No right of access by the general public to any portion of the Property is
conveyed by this Deed.
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14. Costs and Liabilities. The Owners retain all responsibilities and shall bear all
costs and liabilities of any kind related to the ownership, operation, upkeep, repair, and
maintenance of their respective Parcels, including the maintenance of adequate comprehensive
general liability insurance coverage. The Owners shall keep their respective Parcels free of any
liens arising out of any work performed for, materials furnished to, or obligations incurred by the
Owners (not including mortgages made subject and subordinate to this Deed.)
15. Taxes. Each Owner shall pay before delinquency all taxes, assessments, fees,
and charges of whatever description levied on or assessed against their respective Parcels by
competent authority.
16. Liability.
A. General Indemnification. Each Owner shall hold harmless, indemnify,
and defend the City and its members, directors, officers, employees, agents, and
contractors and the heirs, personal representatives, successors and assigns of each
of them (collectively "Indemnified Parties") from and against all liabilities,
penalties, costs, losses, damages, expenses, causes of action, claims, demands, or
judgments, including, without limitation, legal costs and 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 such Owner's Parcel,
regardless of cause when the indemnified party performs a duty under this
Easement Agreement, unless and only to the extent the negligence of any of the
Indemnified Parties was a proximate cause; (2) the obligations specified in
paragraph 14, Costs and Liabilities, and paragraph 8, Enforcement, herein; and (3)
the presence or release of hazardous or toxic substances on, under or about such
Owner's Parcel, unless caused or released by the Indemnified Parties. For the
purpose of this paragraph, 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 the City, nor shall the City 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.
B. No Waiver of Governmental Immunity. Anything else in this Easement
Agreement to the contrary notwithstanding, no term or condition of this Easement
Agreement shall be construed or interpreted as a waiver, either express or implied,
of any of the immunities, rights, benefits or protection provided to the City under
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
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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 City acknowledges that liability for claims
for injury to persons or property arising out of the negligence of the City, 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 Easement
Agreement 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.
C. Environmental Warranty and Indemnification. Each Owner warrants that
it is in compliance with, and shall at all times remain in compliance with, all
applicable Environmental Laws. Each Owner hereby promises to hold harmless
and indemnify the City against all litigation, claims, demands, penalties and
damages, including reasonable attorneys' fees, arising from or connected with the
release or threatened release of any Hazardous Materials on, at, beneath or from
their respective Parcel, or arising from or connected with a violation of any
Environmental Laws by such Owner or any party authorized or permitted on their
respective Parcel by or through such Owner.
Environmental Law" or "Environmental Laws" means any and all
Federal, state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, guidelines, policies or requirements of any governmental
authority regulating or imposing standards of liability or standards of conduct
including common law) concerning air, water, solid waste, hazardous materials,
worker and community right-to-know, hazard communication, noise, radioactive
material, resource protection, subdivision, inland wetlands and watercourses,
health protection and similar environmental health, safety, building and land use
as may now or at any time hereafter be in effect.
Hazardous Materials" means any petroleum, petroleum products, fuel oil,
waste oils, explosives, reactive materials, ignitable materials, corrosive materials,
hazardous chemicals, hazardous wastes, hazardous substances, extremely
hazardous substances, toxic substances, toxic chemicals, radioactive materials,
infectious'materials and any other element, compound, mixture, solution or
substance,which may pose a present or potential hazard to human health or the
environment.
17. Real Property Interest. This Easement constitutes a real property interest vested in
the Grantee. The parties stipulate that this Easement has a fair market value equal to Seventy
One percent (71%) of the full fair market value of the Property (not including building
improvements), as unencumbered by the Easement, as of the Effective Date. (Note:, The fair
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market value of the Easement was established by an independent third party appraisal at the time
the original conservation easement was granted and did not include valuation of any existing
structures on the property.) For the purposes of this Easement Agreement, the ratio of the value
of the Easement to the value of the Property as unencumbered by the Easement shall remain
constant.
18. Subsequent Transfer, Condemnation and Extinguishment.
A. Subsequent Transfer. An Owner shall notify the City in writing at least
thirty (30) days in advance of the proposed conveyance of any interest in all or
any portion of their Parcel, including any conveyance under threat of
condemnation, and shall incorporate the terms and conditions of this Easement
Agreement in any deed or other legal instrument by which an Owner divests itself
of any interest in all or a portion of their Parcel, except conveyance of a leasehold
interest that is no longer than one year in duration or an agricultural lease and is
otherwise consistent in all respects with the terms of this Easement Agreement.
The failure of an Owner to perform any act required by this paragraph shall not
impair the validity of the Easement or limit its enforceability in any way.
B. Condemnation. If condemnation of a part of the Property or of the entire
Property by public authority will render it impossible to fulfill any of the purposes
of this Easement, the Easement may be terminated through condemnation
proceedings, or by action of the City if the condemnation proceeding is resolved
through a conveyance or stipulated settlement that includes the City. Owners and
the City shall act jointly to recover the full fair market value of the affected
portion of the Property and all damages resulting from the condemnation. All
expenses reasonably incurred by the Owners and the City in connection with the
condemnation shall be paid out of the total amount recovered prior to the
allocation of such damages award between the Owners and the City, as described
in paragraph f B.D.
C. Extinguishment. If circumstances arise in the future that render the
purpose of the Easement impossible or undesirable to accomplish on all or a
portion of the Property, the Easement can be terminated or extinguished, whether
in whole or in part, by judicial proceedings in a court of competent jurisdiction, or
by action of the City. A party that learns of any such circumstances shall
promptly notify the other party.
D. Compensation to the City. The City shall be entitled to compensation in
accordance with applicable law, after the satisfaction of prior claims, from the
proceeds of any sale, exchange, condemnation, extinguishment, termination, or
other involuntary or voluntary conversion of all or any portion of the Property that
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is not made subject to and in accordance with the terms of this Easement or that
reduces the scope or value of the Easement. The City's compensation shall be an
amount equal to the Easement value percentage listed in paragraph 17 above,
multiplied by the full amount of the proceeds from any sale, exchange,
condemnation, or other involuntary or voluntary conversion of all or a portion of
the Property (not including the value of any building improvements) or, in the
case of extinguishment or termination, the full fair market value of the Easement
calculated as described below.
E. Calculation of Fair Market Value. Should the parties agree to terminate
the Easement as to all or a portion of the Property, and if the parties cannot agree
on the fair market value (FMV) at the time of termination, then the parties shall
make a good faith effort to select an appraiser that is acceptable to all parties to
determine the FMV. If the parties cannot agree on one appraiser, then the FMV "
shall be calculated as follows: each Owner and the City shall obtain an
independent written appraisal, at their own,cost and expense, from the appraisers
of their choice, subject to the requirements of the next sentence. Each person
designated to participate in the appraisal of the Easement shall (a) be a
professional appraiser with at least five (5) years' experience and prior experience
appraising conservation easements; (b) be a member of the American Institute of
Real Estate Appraisers; and-(c) have no other material, financial or other business
interest in common with a party to this Easement. If the parties still cannot agree
on a purchase price within thirty (30) days after the receipt of the last of the
written appraisals, the parties shall cause their respective appraisers to select
another appraiser within ten (10) days thereafter. This additional appraiser shall
provide a written appraisal within thirty.(30) days of appointment ("Final
Appraisal"), the cost of which shall be split by the parties. The fair market value
of the Easement will be deemed to be the average of the Final Appraisal with the
previous appraisal that is closest to the Final Appraisal, and the appraisal(s) being
the furthest away from the Final Appraisal will be disregarded. The
determination as to purchase price (as determined by averaging the two appraisals
as provided above) shall be final and binding on the parties, absent fraud or gross
error.
19. Assignment. The Easement is transferable, but the City may assign its rights and
obligations under this Deed only to an organization that is: (a) a qualified organization at the
time of transfer under Section 170(h) of the Internal Revenue Code of 1954, as amended (or any
successor provision then applicable), and the applicable regulations promulgated thereunder; (b)
authorized to acquire and hold conservation easements in gross under Colorado law;,or (c) a
governmental entity. In the event that the City seeks to assign this Easement, City agrees that it
will make reasonable efforts to identify two or three potential conservation organizations that
meet the requirements of this Paragraph and have a strong basis in Larimer County to receive
assignment of the conservation easement, to be presented to the Owners or their successors-in-
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interest, from which the Owners will select the organization to which City may assign this
Easement. If the Owners cannot agree, the City will select such organization.
20. Recordation/Subsequent Transfers. The City shall record this instrument in
timely fashion in the official records of each county in which the Property is situated,' and may
re-record it at any time as maybe required to preserve its rights in this Deed.
21. Notices. Any notice, demand, request, consent, approval, or communication that
either party desires or is required to give to the other under this Deed shall be in writing and
either served personally or sent by first class mail, postage prepaid, addressed as follows and
shall be deemed given when personally served or on the third business day after being so mailed:
If to the Owner of Parcel 1:
Alex Schuman
2950 S. CR 5
Fort Collins, CO 80525
If to the Owner of Parcel II:
Kenneth and Deborah Gheen
P.O. Box 270685
Fort Collins, CO 80527
If to the City:
Director, Natural Areas Department
1745 Hoffman Mill Road
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.
22. General Provisions.
A. Controlling Law. The interpretation and performance of the Easement and
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, the Easement and this Deed shall be liberally construed in favor
of the grant to effect the purpose of the Easement 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 purposes of the Easement that
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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 application thereof to any
person or circumstance, is found to be invalid, the remainder of the provisions of
this Deed, or the application of such provision to persons or circumstances other
than those as to which it is found to be invalid, as the case may be, shall not be
affected thereby.
D. Entire Agreement. This Deed sets forth the entire agreement of the parties
with respect to the Easement and supersedes all prior discussions, negotiations,
understandings, or agreements relating to the Easement, all of which are merged
herein.
E. No Forfeiture. Nothing contained herein shall result in a-forfeiture or
reversion of an Owner's fee title to its Parcel.
F. Joint Obli agtion. In the event that 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. The owners of one
Parcel-are not liable for the obligations of the owners of the other Parcel.
G. Successors: Third Party Beneficiaries. The covenants, terms, conditions,
and restrictions of this Deed shall be binding upon, and inure to the benefit of,
the parties hereto and their respective personal representatives, heirs,
beneficiaries, trustees, successors, and assigns and shall continue as a servitude
running in perpetuity with the Property. It is expressly understood and agreed
that 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 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.
H. Termination of Rights and Obligations. A party's rights and obligations
under this Deed terminate upon transfer of the party's interest in the Easement or
the 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 instrument have been inserted solely for
convenience of reference and are not a part of this instrument and shall have no
effect upon construction or interpretation.
J.Amendment. If the circumstances arise under which an amendment to or
modification of this Deed with respect to either Parcel would be appropriate, the
Owner of such Parcel and the City 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. No amendment shall be allowed that will affect
the qualifications of this Deed under any applicable laws. Any amendment must
be consistent with the conservation purposes of this Deed and may not affect its
perpetual duration. Any amendment must be in writing, signed by the duly
authorized officials of each affected party, and recorded in the records of the
Clerk and Recorder of the County in which the Property is located.
K. Obligations Subiect to Annual Appropriation. Any obligations of the
Grantee under this Easement Agreement for fiscal years after the year of this
Easement Agreement are subject to annual appropriation by the Fort Collins City
Council, in its sole discretion, of funds sufficient and intended-for such purposes.
TO HAVE AND TO HOLD unto the City and its successors and assigns forever.
IN WITNESS WHEREOF, the Owners and the City have executed this Amended Deed
of Conservation Easement on the day and year first above written.
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OWNER PARCEL L•
PARADISE RANCH, LLC
a Colorado Limited Liability Company
Date: By:
Alex Schuman, Member
STATE OF COLORADO )
ss
COUNTY OF
The foregoing instrument was acknowledged before me this _day of
2016, by Alex Schuman, as Member of Paradise Ranch, LLC.
Witness my hand and official seal.
My Commission expires:
i
Notary Public
c
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I
OWNER PARCEL II:
Date:
Kenneth M. Gheen
Date:
Deborah F. Gheen
t
STATE OF COLORADO )
ss
COUNTY OF
The foregoing instrument was acknowledged before me this day of
2016, by Kenneth M. Gheen and Deborah F. Gheen.
Witness my hand and official seal.
My Commission expires:
Notary Public
r
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CITY:
THE CITY OF FORT COLLINS, COLORADO
a Municipal Corporation
Date: By:
Darin A. Atteberry, City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
Assistant City Attorney
STATE OF COLORADO )
ss
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of
2016, by Darin A. Atteberry as City Manager of the City of Fort Collins.
Witness my hand and official seal.
My Commission expires:
Notary Public
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EXHIBIT"A"
Legal Description of the Property
Parcel I:
A tract of land situate in the West '/2 of the Northwest''/a of Section 26,
Township 7 North,Range 68 West of the Sixth P.M., County of Larimer,
State of Colorado, being the Southerly portion of Parcel A,Jack Hahn M.R.D.,
S-6-87 and being,more particularly described as follows;considering the West
line of said Northwest ''/.as bearing N 00100'00" E and with all bearings
contained herein relative thereto,is contained within the boundary lines
which begin at a point on the East line of the West %of the Northwest '/4 of
said Section 26 which bears S 89°44'13"E 1317.70 feet and again
S 00002'57"E 1285.23 feet from the Northwest corner of said Section 26;
thence S 00°02'57" E 1357.65 feet along said East line to the center West
1/16 comer of said Section;thence S 89°57'24" W 719.95 feet along the
South line of said West %of the Northwest 1/4,thence N 00°00'00"E 330.00 feet;
thence S 89°57'24" W 600.00 feet to the West line of said Northwest 1/4;
thence along the West line of said Northwest ''/,N 00°00'00"E 1037.74 feet;
thence S 89°36'18" E 1318.82 feet to the point of beginning,
containing 36.7286 acres more or less,and being subject to all easements,
rights-of-way and notes on the Jack Hahn M.R.D., S-6-87,and subject to the
Conservation Easement between Chris Cribari and the City of Fort Collins,
Colorado and recorded at reception number 20050021923 on March 21;2005,
County of Larimer, State of Colorado.
Also known as 2950 South County Road 5, Fort Collins,Colorado 80525.
Parcel IL•
A tract of land situate in the West%:of the Northwest%.of Section 26,Township 7 North,Range 68 West of the Sixth
P.M.,County of Larimer,State of Colorado,being the Northerly portion of Parcel A,Jack Hahn M.R.D.,S-6-87 and
being more particularly described as follows;considering the West line of said Northwest%.as bearing N 00100'00"E
and with all bearings contained herein relative thereto,is contained within the boundary lines which begin at the
Northwest comer of said Section 26;thence S89°44'13"E 1317.70 feet along the North line of the Northwest 1/4 of said
Section 26 to the West 1/16 comer on the North line;thence S00°02'57"E 1285.23 feet along the East line of the
Northwest 1/4 of the Northwest 1/4 of said Section 26;thence N89°36'18"W 1318.82 feet to the West line of the
Northwest 1/4 of said Section 26;thence N00°00'00"E 1282.19 feet to the point of beginning,containing 38.8483 acres
more of less,and being subject to all easements,rights-of-way and notes on the Jack Hahn MAD.,S-6-87,and subject
to the Conservation Easement between Chris Cribari and the City of Fort Collins,Colorado and recorded at reception
number 20050021923 on March 21,2005,County of Larimer,State of Colorado.
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