HomeMy WebLinkAbout20060232.tiff RESOLUTION
RE: ACCEPT DEED OF CONSERVATION EASEMENT FOR PF #604 AND AUTHORIZE
CHAIR TO SIGN - DARRELL ADOLF AND DELMER ZIEGLER
WHEREAS,the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, on August 24, 2005, the Board of County Commissioners did approve a
Planned Unit Development Final Plan, PF#604, for six(6) residential lots and one(1)agricultural
outlot, for a parcel of land located on the following described real estate, to-wit:
Lot C of Recorded Exemption#2940, being part of the NE1/4
of Section 29, Township 9 North, Range 67 West of the 6th
P.M., Weld County, Colorado
WHEREAS,pursuant to certain Conditions of Approval,a Deed of Conservation Easement
has been presented to the Board of County Commissioners of Weld County,Colorado,from Darrel
Adolf and Delmer Ziegler,a copy of which is attached hereto and incorporated herein by reference,
and
WHEREAS,after review by the County Attorney's Office, the Board deems it advisable to
accept said deed.
NOW,THEREFORE,BE IT RESOLVED by the Board of County Commissioners of Weld
County,Colorado,that the Deed of Conservation Easement from Darrel Adolf and Delmer Ziegler
be, and hereby is, accepted.
BE IT FURTHER RESOLVED that the Chair be, and hereby is, authorized to sign the
Acceptance of said Deed of Conservation Easement.
2006-0232
06'. ct-.Dz— PL1733
c'a -a.-
CONSERVATION EASEMENT - PF #604, DARREL ADOLF AND DELMER ZIEGLER
PAGE 2
The above and foregoing Resolution was,on motion duly made and seconded, adopted by
the following vote on the 18th day of January, A.D., 2006.
, BOARD OF C UNTY COMMISSIONERS
4 � ELD COU Y, COLORADO
ATTEST: Lie , .}`.11/42` %Z7 1,i
r . eile, Chair
Weld County Clerk to the : ' i,- ,rte David E. Long, Pro-T
D puty Clbr�k to the Boar -'-2-, i/`/-4'
Wi m H. Jerke
APP A : A4 -c)
Robert D. Masden
unty Attorney L EXCUSED
Glenn Vaad
Date of Signature-
i a�(c
2006-0232
PL1733
0
DEED OF CONSERVATION EASEMENT
THIS DEED OF CONSERVATION EASEMENT (the "Deed") is made by Darrell
Adolf and Delmer Ziegler, whose address is 3800 G.W. Bush Wellington, Colorado
80549 ("Grantor(s)"), to the Board of County Commissioners of the County of Weld, a
political subdivision of the State of Colorado, whose address is P.O. Box 758, 915 10th
Street, Greeley, Colorado 80632 as Grantee, ("County").
WITNESSETH THAT:
WHEREAS, Grantor(s) are the owners in fee simple of certain real property in
Weld County, Colorado, more particularly described as Lot C RE-2940, being a
portion of the NE 1/4 of Section 29, T9N, R67W of the 6th P.M., County of Weld
County, State of Colorado in Sheet '1' & '2' as Antelope Estates Cluster PUD Change
of Zone, PZ 604 which is attached hereto and incorporated herein by this reference (the
"Property"); and
WHEREAS, the Property possesses wildlife viewing and habitat, agricultural,
open space and scenic values of great importance to Grantor(s), the people of Weld
County and the people of the State of Colorado; and
WHEREAS, Grantor(s) intend that the Property be maintained in its present
condition by the maintenance of the agricultural values thereof and that the
wildlife viewing and habitat open space and scenic values of the Property be
preserved by the continuation of the current use or any agricultural and/or
ranching uses that have proven historically compatible with such values; and
WHEREAS, Grantor(s) intend, as owners of the Property, to convey to County
the right to preserve and protect the present use, open-space, wildlife viewing and
habitat, and scenic values of the property for 40 Years through this Deed of Agricultural
Conservation Easement and Development Rights from Grantor(s); and
WHEREAS, the County of Weld (the "County") desires to assist the Grantor(s) in
accomplishing such goals by accepting this Deed of Conservation Easement and
Development Rights from Grantor(s), and thereby to honor the intentions of Grantor(s)
to preserve and protect for 40 Years the present use, wildlife viewing and habitat, open
space and scenic values of the Property; and
NOW, THEREFORE, for good and valuable consideration, and in consideration
of the mutual covenants, terms, conditions, and restrictions contained herein, and
pursuant to the laws of the State of Colorado including, inter-alia, C.R.S. §§ 38-30.5-
101, et. seq., Grantor(s) do hereby voluntarily grant to County an Conservation
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Easement in gross for 40 Years over the Property of the nature and character and to
the extent hereinafter set forth (the "Easement"). Grantor(s) also grant to County
certain development rights associated with the Property as hereinafter described.
1. Purpose. It is the purpose of this Easement to enable the Property to remain in
agricultural use for the production of food and fiber by preserving and protecting
for 40 Years its present use, open space, character, use and utility, and to
prevent any use of the Property that would significantly impair or interfere with its
present use, open space, values, character, use or utility. Furthermore, the
preservation of the wildlife viewing and habitat, open space and scenic values of
the Property is consistent with such use and it is also within the purpose of this
Easement to protect those values.
2. Affirmative Rights and Interests Conveyed. To accomplish the purpose of this
Easement, the following rights and interests are conveyed to County by this
Easement to be exercised at County's sole discretion.
a. To identify, to preserve and to protect for 40 Years the wildlife viewing and
habitat, agricultural values, character, use and utility, including the soil and water
quality, and the open space and scenic values of the Property. (The agricultural values,
character, use and utility, wildlife viewing and habitat, and the open space and scenic
values of the property are hereinafter referred to collectively as "the protected values.")
b. To enter upon, inspect, observe, and study the Property for the purposes
of(1) identifying the current uses and practices thereon and the baseline condition
thereof, and (2) monitoring the uses and practices regarding the Property to determine
whether they are consistent with this Easement. Such entry shall be permitted upon
prior notice to Grantor(s), and shall be made in a manner that will not unreasonably
interfere with Grantor(s)' use and quiet enjoyment of the Property.
c. To prevent any activity on or use of the Property that is inconsistent with
the purpose of this Easement and to require the restoration of such areas or features of
the Property that may be damaged by any inconsistent activity or use. However, it is
the intention of this Easement not to limit Grantor(s)' discretion to employ their choices
of farm and ranch uses and management practices so long as those uses and practices
are consistent with the purpose of this Easement.
d. Subject to Grantor(s)' consent, which shall not be unreasonably
withheld, to erect and maintain a sign or other appropriate marker in a prominent
location on the Property, visible from a public road, bearing information indicating that
the Property is protected by County. The wording of the information shall be
determined by County, but shall clearly indicate that the Property is privately owned and
not open to the public. County shall be responsible for the costs of erecting and
maintaining such sign or marker.
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e. Subject to Grantor(s)' consent, which shall not be unreasonably
withheld, to create wetlands, not inconsistent with this easement, at County's expense.
County shall be responsible for engineering, construction and regulatory approvals.
f. To hold the development rights to obtain zoning and subdivision or PUD
approval to create a parcel less than 35 acres in size including any portion of this
easement provided, however, grantor shall not be precluded from including in a zone
change and subdivision or PUD provided the applications or approvals do not purport to
authorize uses inconsistent with this easement.
3. Uses and Practices. County and Grantor(s) intend that this Easement shall
confine the uses of the Property to agriculture, ranching, wildlife viewing and
habitat, and/or the other uses which are described herein. Examples of uses
and practices which are consistent with the purpose of this Easement, and which
are hereby expressly permitted, are set forth in Exhibit "C," attached hereto and
incorporated herein by this reference. Examples of uses and practices which are
inconsistent with the purpose of this Easement, and which are hereby expressly
prohibited, are set forth in "D" attached hereto and incorporated herein by this
reference. The uses and practices set forth in Exhibits C and D are not
necessarily exhaustive recitals of consistent and inconsistent activities,
respectively. They are set forth both to establish specific permitted and
prohibited activities, and to provide guidance in determining the consistency of
other activities with the purpose of this Easement.
4. Baseline Data. In order to establish the present condition of the Protected
Values, Baseline Data shall consist of video or photographic documentation and
accepted as accurate by the county. The parties intend that the Baseline Data
shall be used by County to monitor Grantor(s)' future uses of the Property and
practices thereon. The parties further agree that, in the event a controversy
arises with respect to the condition of the Property or a particular resource
thereof, the parties shall not be foreclosed from utilizing any other relevant
document, survey, or report to assist in the resolution of the controversy.
Grantor(s) and County recognize that changes in economic conditions, in
agricultural technologies, in accepted farm and ranch management practices,
and in the situations of Grantor(s) may result in an evolution of agricultural uses
of the Property, provided such uses are consistent with this Easement.
Grantors reserve the right to discontinue all farm, ranch & agricultural
uses. The property is currently Conservation Reserve Program and therefore is
not currently being used for farm or ranch purposes.
5. Reserved Rights. Grantor(s) reserve to themselves, and to their personal
representatives, heirs, 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 not expressly prohibited
herein and are not inconsistent with the purpose of this Easement. Without
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limiting the generality of the foregoing, the following rights are expressly
reserved: (I) all right, title, and interest in and to all tributary and non-tributary
water, water rights, and related interests in, on, under, or appurtenant to the
Property, provided that such water rights are used on the Property in a manner
consistent with the purpose of this Easement; and (ii) opportunity to apply for
and obtain a Planned Unit Development or subdivision approval from the County
or municipality with jurisdiction, so long as said applications do not seek uses
inconsistent with the provisions of this easement and County has been provided
notice of said proceedings.
6. Arbitration. If a dispute arises between the parties concerning the consistency
of any proposed use or activity with the purpose of this Easement, and
Grantor(s) agree not to proceed with the use or activity pending resolution of the
dispute, either party may refer the dispute to arbitration by request made in
writing upon the other.
7. County's Remedies. If County determines that Grantor(s) are in violation of the
terms of this Easement or that a violation is threatened, County shall give written
notice to Grantor(s) of such violation and demand corrective action sufficient to
cure the violation and, where the violation involves injury to the Property resulting
from any use or activity inconsistent with the purpose of this Easement, to
restore the portion of the Property so injured. If Grantor(s) fail to cure the
violation within thirty (30) days after receipt of notice thereof from County, or
under circumstances where the violation cannot reasonably be cured within a
thirty (30) day period, fail to begin curing such violation within the thirty (30) day
period, or fail to continue diligently to cure such violation until finally cured,
County may bring an action at law or in equity in a court of competent jurisdiction
to enforce the terms of this Easement, to enjoin the violation by temporary or
permanent injunction, to recover any damages to which it may be entitled for
violation of the terms of this Easement or injury to any protected values,
including damages for any loss thereof, and to require the restoration of the
Property to the condition that existed prior to any such injury. If County, in its
sole discretion, determines that circumstances require immediate action to
prevent or mitigate significant damage to the protected values of the Property,
County may pursue its remedies under this paragraph without waiting for the
period provided for cure to expire. County's rights under this paragraph apply
equally in the event of either actual or threatened violations of the terms of this
Easement, and Grantor(s) agree that County's remedies at law for any violation
of the terms of this Easement are inadequate and that County shall be entitled to
the injunctive relief described in this paragraph, both prohibitive and mandatory,
in addition to such other relief to which County may be entitled, including specific
performance of the terms of this Easement, without the necessity of proving
either actual damages or the inadequacy of otherwise available legal remedies.
County's remedies described in this paragraph shall be cumulative and shall be
in addition to all remedies now or hereafter existing at law or in equity.
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7.1 Costs of Enforcement. Any costs incurred by County in enforcing the
terms of this Easement against Grantors, including, without limitation, costs of
suit and attorneys' fees, and any costs or restoration necessitated by Grantors'
violation of the terms of this Easement shall be borne by Grantors. If Grantors
prevail in any action to enforce the terms of this Easement, Grantors' costs of
suit, including, without limitation, attorneys' fees, shall be borne by County.
7.2 County's Discretion. Enforcement of the terms of this Easement shall
be at the discretion of County, and any forbearance by County to exercise its
rights under this Easement in the event of any breach of any term of this
Easement by Grantors shall not be deemed or construed to be a waiver by
County of such term or of any subsequent breach of the same or any other term
of this Easement or of any of County's rights under this Easement. No delay or
omission by County in the exercise of any right or remedy upon any breach by
Grantors shall impair such right or remedy or be construed as a waiver.
7.3 Acts Beyond Grantors' Control. Nothing contained in this Easement
shall be construed to entitle County to bring any action against Grantors for any
injury to or change in the Property resulting from causes beyond Grantors'
control, including, without limitation, fire, flood, storm, and earth movement, or
from any prudent action taken by Grantors under emergency conditions to
prevent, abate, or mitigate significant injury to the Property resulting from such
causes.
8. Costs and Taxes. Grantors retain all responsibilities and shall bear all costs
and liabilities of any kind related to the ownership, operation, upkeep and
maintenance of the Property. Grantors shall pay any and all taxes,
assessments, fees and charges levied by competent authority on the Property or
on this Easement; provided however there shall be no personal liability on the
part of the Grantors for payment of taxes & assessments. It is intended that this
Easement constitute an enforceable restriction within the meaning of C.R.S. §§
38-30.5-101, et. seq.
9. Hold Harmless. Grantors shall hold harmless, indemnify, and defend County
and its 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, 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, except to
the extent of the adjudicated proportionate fault of any of the Indemnified
Parties; (2) the obligations specified in Paragraph 8.
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10. Access. No right of access by the general public to any portion of the Property
is conveyed by this Easement unless and until a viewing stand is constructed in
accordance with paragraph 2 d herein, in which case, the right of access shall be
limited to the area described in paragraph 2.d.
11. Extinguishment. If circumstances arise in the future such as render the
purpose of this
Easement impossible to accomplish, this Easement can only be terminated or
extinguished, whether in whole or in part, by judicial proceedings in a court of
competent jurisdiction, and the amount of the compensation to which County
shall be entitled from any sale, exchange, or involuntary conversion of all or any
portion of the Property subsequent to such termination or extinguishment, shall
be determined, unless otherwise provided by Colorado law at the time, in
accordance with Paragraph 12.
12. Compensation. This Easement constitutes a real property interest immediately
vested in County. For the purpose of paragraph 12, the parties stipulate that this
Easement has a fair market value determined by multiplying (i) the fair market
value of the Property unencumbered by the Easement (minus any increase in
value attributable to improvements made after the date of this grant), by (ii) the
ratio of the value of the Easement at the time of this grant to the value of the
Property, unencumbered by the Easement, at the time of this grant.
For the purposes of this Paragraph 12, Grantor and County agree that the ratio
of the value of the Easement to the value of the Property unencumbered by the
Easement is 1:2. This ratio shall remain constant.
13. Condemnation. If the Easement is taken, in whole or in part, by exercise of the
power of eminent domain, County shall be entitled to compensation in
accordance with applicable law.
14. Assignment of County's Interest. County may assign its interest in this
Easement only to a "qualified organization," within the meaning of Section
170(h) of the Internal Revenue Code of 1954, as amended, or any successor
provision, and which is authorized to acquire and hold conservation easements,
under applicable law, upon obtaining the prior written consent of Grantor(s). Any
assignment without such consents shall be void and of no effect. Such consents
shall not be unreasonably withheld by Grantor(s).
15. General Provisions.
a. Controlling Law. The interpretation and performance of this Easement
shall be governed by the laws of the State of Colorado.
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b. Liberal Construction. Any general rule of construction to the contrary not
withstanding, this Easement shall be liberally construed in favor of the grant to effect
the purpose of this Easement and the policy and purpose of C.R.S. §§ 38-30.5-101, et.
seq. If any provision in this instrument is found to be ambiguous, an interpretation
consistent with the purpose of this Easement that would render the provision valid shall
be favored over any interpretation that would render it invalid.
c. Severability. If any provision of this Easement, or the application thereof
to any person or circumstance, is found to be invalid, the remainder of the provisions of
this Easement, 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 instrument 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 Grantor's title in any respect.
f. Joint Obligation. The obligations imposed by this Easement upon
Grantor(s) shall be joint and several.
g. Successors. The covenants, terms, conditions, and restrictions of this
Easement shall be binding upon, and inure to the benefit of the parties hereto and their
respective personal representatives, heirs, successors, and assigns and shall continue
as a servitude running for 40 Years with the Property.
h. Termination of Rights and Obligations. A party's rights and obligations
under this Easement terminate upon transfer of the party's interest in the Easement or
Property, except that liability for acts or omissions occurring prior to transfer shall
survive transfer.
Future Conveyance. Grantor(s) agree that reference to this Deed will be
made in any subsequent deed or other legal instrument by means of which they convey
any interest in the Property (including but not limited to a leasehold interest).
j. Not Governmental Approval. No provision of this Easement nor the
approval by the County of a grant for the acquisition of this Easement shall constitute
governmental approval of any improvements, construction or other activities which may
be permitted under this Easement.
k. No Waiver of Immunity. No portion of this Easement shall be deemed to
constitute a waiver of any immunities the parties or their officers or employees may
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possess, nor shall any portion of this Easement be deemed to have created a duty of
care which did not previously exist with respect to any person not a party to this
Easement .
I. No Third Party Beneficiary Enforcement. It is expressly understood and
agreed that the enforcement of the terms and conditions of this Easement, and all
rights of action relating to such enforcement, shall be strictly reserved to the
undersigned parties and nothing in this Easement shall give or allow any claim or right
of action whatsoever by any other person not included in this Easement. It is the
express intention of the undersigned parties that any entity other than the undersigned
parties receiving services or benefits under this Easement shall be an incidental
beneficiary only.
IN WITNES§ WHEREOF, Grantor(s) have executed this Deed of Conservation
Easement this I ( day of t'JneeM alto , 20O17-
G TOR(S
aL€ t. cY i
The forgoing instrument was acknowledged before me this / 'day of
uewtisa t , 20 by
Witness my hand and official seal.
My commission expires: /1/$(n t
CLW(4a DIgotitel
. . . . . .
DIANA L. HOOVER
Notary Public
State of Colorado
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ACCEPTANCE
County, the County of Weld, a political subdivision of the State of Colorado, by and
through the Board of County Commissioners of the County of Weld, hereby accepts this
DEED OF AGRICULTURAL CONSERVATION EASEMENT and agrees to abide by the
terms set forth herein.
COUNTY OF WELD,A POLITICAL
SUBDIVISION OF THE STATE OF
COLORADO
M. J. eile, Chair JAN 1 r_S -,_0
Board of County Commissioners of the County of Weld
I l'iws,
t.ATTEST:WEL COUNTY CLERK TO THEB 111.
/+
BY: _ lu�-r,1 2t i E Kim-,
�N �
DE; TY CLERK TO THE BOARD Sellig
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„C„
"Consistent Acts”
Agriculturally related buildings and structures are permitted if: (i) they are not used for
residential purposes; (ii) they are constructed and used as accessory structures to a
single principal use of agriculture; and (iii) they are determined to be in accordance with
county land use regulations under presently existing zoning. However, it is the intention
of this Easement not to limit Grantor(s)' discretion to employ their choices of farm and
ranch uses and management practices so long as those uses and practices are
consistent with the purpose of this Easement. Mowing, weed control, grazing, buildings
to house agricultural implements or feed, control of vermin by the grantor are also
considered consistent.
"Inconsistent Acts"
Construction of a residence or placement of a mobile home or manufactured home for
any purpose or the storage and parking of motor vehicles, whether or not operative, or
tractor trailers is deemed inconsistent. No hunting or fishing shall be allowed on the
Property. No commercial kennels shall be allowed on the Property. No disposal or
storage of solid or hazardous waste shall occur but this shall not preclude the storage
or disposal of agricultural waste which is exempt from the definition of solid waste under
the Solid Waste act nor the legal use of pesticides, herbicides, fungicides or
rodenticides or hazardous substances in accordance with ordinary farm practices.
Timber harvesting or systematic removal of trees or shrubs shall be deemed
inconsistent but this shall not preclude tree trimming.
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