HomeMy WebLinkAbout4592 Parfet Street2018010754 2/2/2018 4:42 PM
PGS 38 $198.00 DF $0.00
Electronically Recorded Jefferson County, CO
Faye Griffin, Clerk and Recorder TD1000 N
Heine Wildlife Sanctuary
AMENDED AND RESTATED
DEED OF CONSERVATION EASEMENT
Pursuant to the requirements of Section 13 (Transfer of Property) of this Deed, any time the
Property or a permitted portion thereof is transferred by Grantor to any third party, Grantor shall
pay a fee of V4 of 1% of the sale price to Grantee and notify Grantee.
THIS DEED OF CONSERVATION EASEMENT ("Deed" and "Easement") is granted on
this sk day of February, 2018, by Karin Heine, whose address is 4596 Parfet Street, Wheat
Ridge, Colorado 80023 ("Grantor"), to COLORADO OPEN LANDS, a Colorado non-profit
corporation ("Grantee"), whose address is 1546 Cole Blvd, Suite 200, Lakewood, Colorado 80401
(individually a "Patty" and collectively the "Parties").
The following exhibits are attached hereto and arevocorporated by reference:
Exhibit A: Legal Description
Exhibit B: Map
Exhibit C: Dedicated Water Rights
Exhibit D: Sample Notice of Transfer of Property
RECITALS:
A. Description of Property. Grantor is the owner of the fee simple interest in the subject
Property legally described in Exhibit A and depicted in Exhibit B, both attached hereto and
made a part of this Deed, which consists of approximately 3.7 acres of land ("Existing
Conservation Area") together with two shares of the Brown and Baugh Ditch and two shares of
the Lane Ditch as described in Exhibit C ("Existing Dedicated Water Rights") that are subject to
that certain Deed of Conservation Easement recorded on April 11, 2003 at Reception No.
F 1723481 of the records of the Jefferson County Cleric and Recorder's Office ("First
Conservation Easement"). Grantor is also the owner of the fee simple interest in the subject
property legally described in Exhibit A and depicted in Exhibit B, which consists of
approximately 8.26 acres of land ("New Conservation Area") and additional water rights as
further described in Exhibit C ("New Dedicated Water Rights'. The Existing Conservation
Area and the New Conservation Area, together with existing improvements [as further described
in Section 4(A)] and the Existing Dedicated Water Rights and the New Dedicated Water Rights,
and mineral rights owned by Grantor located in Jefferson County, State of Colorado shall
collectively be known as the "Property".
B. Amended and Restated Easement. This Deed grants a new conservation easement to
encumber the New Conservation Area which was not encumbered by the First Conservation
Easement. The parties intend that this Deed encumber the Property and amend and restate the
First Conservation Easement in its entirety. The parties further intend that upon execution and
Heine Amended and Restated Deed of Conservation Emement Page I
Heine Wildlife Sanctuary
AMENDED AND RESTATED
DEED OF CONSERVATION EASEMENT
Pursuant to the requirements of Section 13 (Transfer of Property) of this Deed, any time the
Property or a permitted portion thereof is transferred by Grantor to any third party, Grantor shall
pay a fee of 1/4 of I% of the sale price to Grantee and notify Grantee.
THIS DEED OF CONSERVATION EASEMENT ("Deed" and "Easement") is granted on
this �1� day of February, 2018, by Karin Heine, whose address is 4596 Parfet Street, Wheat
Ridge, Colorado 80023 ("Grantor"), to COLORADO OPEN LANDS, a Colorado non-profit
corporation ("Grantee"), whose address is 1546 Cole Blvd, Suite 200, Lakewood, Colorado 80401
(individually a "Party" and collectively the "Parties").
The following exhibits are attached hereto and are incorporated by reference:
Exhibit A: Legal Description
Exhibit B: Map
Exhibit C: Dedicated Water Rights
Exhibit D: Sample Notice of Transfer of Property
RECITALS:
A. Description of Property. Grantor is the owner of the fee simple interest in the subject
Property legally described in Exhibit A and depicted in Exhibit B, both attached hereto and
made a part of this Deed, which consists of approximately 3.7 acres of land ("Existing
Conservation Area") together with two shares of the Brown and Baugh Ditch and two shares of
the Lane Ditch as described in Exhibit C ("Existing Dedicated Water Rights") that are subject to
that certain Deed of Conservation Easement recorded on April 11, 2003 at Reception No.
F 1723481 of the records of the Jefferson County Clerk and Recorder's Office ("First
Conservation Easement"). Grantor is also the owner of the fee simple interest in the subject
property legally described in Exhibit A and depicted in Exhibit B, which consists of
approximately 8.26 acres of land ("New Conservation Area") and additional water rights as
further described in Exhibit C ("New Dedicated Water Rights"). The Existing Conservation
Area and the New Conservation Area, together with existing improvements [as further described
in Section 4(A)] and the Existing Dedicated Water Rights and the New Dedicated Water Rights,
and mineral rights owned by Grantor located in Jefferson County, State of Colorado shall
collectively be known as the "Property".
B. Amended and Restated Easement. This Deed grants a new conservation easement to
encumber the New Conservation Area which was not encumbered by the First Conservation
Easement. The parties intend that this Deed encumber the Property and amend and restate the
First Conservation Easement in its entirety. The parties further intend that upon execution and
Heine Amended and Restated Deed of Conservation Easement Page I
recordation of this Deed, the First Conversation Easement will be superseded and replaced in its
entirety by this Deed, and will have no further force or effect.
Upon execution and recordation of this Deed, the Original Deed is hereby amended and restated
in its entirety by this Deed, and the Original Deed shall be superseded by this Deed and have no
further force or effect; provided, however, that such amendment and restatement shall not
interrupt the perpetual duration of the Original Deed or the property rights which vested in
Grantee upon the recording of the Original Deed.
C. Qualified Organization. Grantee is a "qualified organization," as defined in §170(h)(3)
of the I.R.C. and Treasury Regulation § ,1.170A -14(c) and is a charitable organization as required
under § 38-30.5-104 (2) of the Colorado Revised Statutes (C.R.S.), is certified to hold
conservation easements for which a state tax credit is claimed by the State of Colorado's
Division of Real Estate as outlined in C.R.S. § 12-61-724 and in Rule 2.1 of the Code of
Colorado Regulations, Qualifications for Certification to Hold Conservation Easements (4 CCR
725-4, Rule 2. 1), for the current year. Grantee is also accredited by the Land Trust Accreditation
Commission, a national accreditation program sponsored by the Land Trust Alliance, at this
time. Further, Grantee's mission is to preserve the significant open lands and natural heritage of
Colorado through private and public partnerships, innovative land conservation techniques and
strategic leadership, and it possesses the resources and commitment to protect and defend the
conservation purposes of this grant.
D. Conservation Values. The conservation values set forth in this subsection may
hereinafter be collectively referred to as the "Conservation Values." The Conservation Values
are listed below in order of priority. The Property serves as relatively natural habitat for wildlife
and possesses both open space scenic and agricultural qualities. These Conservation Values are
of great importance to Grantor, the people of the City of Wheat Ridge, Jefferson County,
Colorado, and the people of the State of Colorado:
D1. Relatively Natural Habitat [§ 1.170A -14(d)(3)]. In accordance with the Internal
Revenue Code (IRC) and Treasury Regulation 1.170A -14(d)(3) regarding the protection of an
environmental system, this. Property provides a significant relatively natural habitat in which
wildlife lives. Portions of the Property have been planted with vegetation that attracts bees and
other pollinators. The presence of irrigation land supports extensive growth of native plains
cottonwoods, and other trees and shrubs that provide habitat for wildlife, particularly migratory
birds. There are many wildlife species present that are adapted to open, but urban settings, such
as mule deer, red fox and red-tailed hawk. The Property is adjacent to, and buffers and enhances
a 3.7 acre protected parcel, also owned by the Grantor. This adjacent parcel has been certified by
the National Wildlife Federation as an official "Backyard Wildlife Habitat".
D2. Open Space [§ 1.170A -14(d)(4)]. The Property qualifies as Open Space because it is
being preserved for the scenic enjoyment of the general public and pursuant to a clearly
delineated federal, state or local governmental conservation policy and will yield a significant
public benefit.
Heine Amended and Restated Deed of Conservation Easement Page 2
D.2.1. Scenic Enjoyment. The Property adds to the scenic character of the local
suburban landscape in which it lies, contains a harmonious variety of shapes and textures,
and provides a degree of openness, contrast and variety to the overall landscape. The
Property is readily visible to the general public from adjacent public roads, including both
Oak and Parfet Streets in the City of Wheat Ridge which are open to and actively utilized
by residents of Jefferson County and the State of Colorado. Preservation of the Property
will continue to provide an opportunity for the general public to appreciate the
unobstructed scenic views it provides of an open and undeveloped landscape. Further,
preservation of the Property will serve to both maintain the wildlife -habitat, agricultural,
and scenic characteristics and to provide relief from increasing development in the area.
The scenic importance of the Property will also increase over time as the Property's
current land uses are developed, and as further development takes place in neighboring
portions of the City of Wheat Ridge. Last, the terms of this Deed do not permit a degree
of intrusion or future development that would interfere with the essential scenic quality of
the land.
D.2.2. Agriculture. A portion of the Property is currently used for agricultural
purposes including irrigated and dryland crop production, livestock grazing, and apiary or
bee keeping. These uses are compatible with other land use in the vicinity, as several
adjacent properties are also used for agricultural production. The Property's conservation
adds to the open space character of the landscape in the City of Wheat Ridge, Colorado,
particularly by the continuation of agricultural land uses. The Property is currently used
for raising of livestock and hay production. The Property is zoned as Agricultural -1 by
the City of Wheat Ridge, and has agricultural water rights that will be donated as a part of
this conservation easement. According to the Natural Resources Conservation Service,
the Property has Loveland Variant soil, classified as a Class III soil, or Class 11 soil if
irrigated, and much of the Property is irrigated. Loveland Variant soil is further classified
by the Natural Resources Conservation Service as a "prime farmland" soil, and as further
defined in the Farmland Policy Protection Act of 1981 (7 CFR 658).
The provisions of this Deed ensure that the Property will be available for
agricultural production in accordance with I.R.C. § 170(b)(E)(iv)(11). In particular,
although the following land uses are not currently practiced on the Property, permanent
protection of the Property will keep this land available for a community garden and
community farm, as well as an outdoor education facility.
D.2.3. Clearly Delineated Government Conservation Policy. Protection of the
Property furthers the specific objectives of clearly delineated government conservation
policies at the federal, state, and local levels and provides a significant public benefit.
D.2.3.1. Federal legislation supports conservation of the Property through
the Pension Protection Act and supports the Property's protection through Section
170(b)(1)(E)(iv) of the Internal Revenue Code (LR.C.), as amended by the 2006
Pension Protection Act and extended to make the incentive permanent, which law
creates a greater tax deduction and carry forward period for landowners
conserving their properties through the use of perpetual conservation easements,
with even greater tax benefits available to agricultural landowners provided that
Heine Amended and Restated Deed of Conservation Easement Page 3
the conserved property remains available for either agricultural or livestock
production, or both. The Property's protection with this Easement for wildlife
and agricultural purposes furthers this policy's objective by actively encouraging
uses for agriculture, and by requiring that the land remain available for agriculture
when not in active use.
The government of the United States provides further support for
agriculture conservation through the Agricultural Conservation Easement
Program, Title XII, Subtitle H, Section 2401 of the Food, Conservation, and
Energy Act of 2014, Public Law 113-79, 16 U.S.C. 3865 and 3865b authorizes
the Agricultural Conservation Easement Program under which the Secretary of
Agriculture, acting through the Natural Resources Conservation Service, on
behalf of the Commodity Credit Corporation, facilitates and provides funding for
the purchase of conservation easements for the purpose of protecting agricultural
uses and related Conservation Values of eligible land by limiting nonagricultural
uses of the land. The Property's protection with this Easement for wildlife and
agricultural purposes furthers this policy's objective by protecting agricultural and
related uses of the land.
D.2.3.2. State Policy Concerning Conservation Easements. The State
of Colorado has provided incentive for Colorado landowners to protect their land
with conservation easements created pursuant to C.R.S. §§38-30.5-101 et seq., the
enactment of which provides for the creation 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 having wholesome
environmental quality or life-sustaining ecological diversity." The State of
Colorado has provided further incentive for Colorado landowners to protect their
land with conservation easements created pursuant to C.R.S. §§38-30.5-101 et
seq. and §170(h) of the I.R.C. with the enactment of the Conservation Easement
Credit Against Income Taxes, C.R.S. §39-22-522, which provides a transferable
tax credit for qualifying grants of conservation easements in gross.
The State of Colorado also has provided incentive for Colorado.
landowners to protect their land with conservation easements through the
enactment of C.R.S. §§33-1-101, et seq., which 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."
The Colorado Department of Agriculture Statutes, C.R.S. §§35-1-101 et
seq., provide in part that "it is the declared policy of the State of Colorado to
conserve, protect, and encourage the development and improvement of its
agricultural land for the production of food and other agricultural products."
D.2.3.3. Local Supporting Government Policy. The City of Wheat
Ridge has developed goals and policies that support the voluntary preservation of
private lands. Specifically the 2000 City of Wheat Ridge Comprehensive Plan,
states as Goal 13 to "Recognize the fragility of the environment by allowing only
Heine Amended and Restated Deed of Conservation Easement Page 4
those land uses that cause a minimum harm to the environment and adopt policies
that protect Wheat Ridge's dwindling supply of open space and promote its
preservation." In support of this goal, Policy 13.5 provides to "Promote the
preservation of open space by private landowners through mechanisms such as
acquisition, conservation easements, land trusts, and life estates by accessing
programs and funding from non-profit organizations." Policy 13.6 provides in
relevant part to "Develop a system of incentives to include conservation
easements ... as a means of preserving open space and agricultural land." After
the grant of conservation easement in 2003, the City of Wheat Ridge rezoned the
Existing Conservation Area to the "Conservation District". According to the City
of Wheat Ridge Zoning Code, the Conservation District is described, as follows:
Purpose: This district is established to provide a zoning classification for natural
areas held by individuals, corporations or governments, individually or in
combination, for natural resource and conservation purposes in an undeveloped
state.
B. Permitted uses, private property:
a. Open space.
b. Wildlife habitat.
c. Scenic view corridors.
d. Riparian habitat.
e. Underground utility lines.
f. Perimeter fencing.
By means of this seldom used zoning classification, the City of Wheat Ridge has
clearly recognized the Conservation Values of the Existing Conservation Area,
and the efforts made by the Grantor to preserve this site (City of Wheat Ridge
2016b).
The 2014 Jefferson County Open Space Master Plan identifies the
following as priorities for land preservation:
1. Natural Resources
a. Critical Biological Resources identified in the Colorado Natural
Heritage Program Study
b. Habitat for Threatened, Endangered species and species of concern
and rare plant communities
c. Conservation that creates or sustains continuous wildlife corridors
d. Significantly biodiverse areas
e. Jeffco Open Space Conservation Study Areas
f. Water and mineral rights
2. Nature -Based Experiences
a. Regional trails that link multiple jurisdictions (e.g., Peaks to
Plains Trail)
b. Park to Park trails that connect Jeffco Open Space and other public
parks (e.g., White Ranch Park to Golden Gate Canyon State Park)
c. Additional trails within Jeffco Open Space Parks
d. Community and neighborhood access to nature -based
experiences, outdoor recreation, open space and parklands
Heine Amended and Restated Deed of Conservation Easement Page 5
The Property supports la, as it is entirely within the Prospect Park Potential
Conservation Area identified by the Colorado Natural Heritage Program and will
be available to support 2d due to its location in a neighborhood setting.
D.2.3.4. Significant Public Benefit. There is existing and a foreseeable
trend of development in the vicinity of the Property in the near future. As such,
there is a strong likelihood that the Property would be developed if left
unprotected, which would in turn lead to or contribute to the degradation of the
scenic, agricultural, and natural character of the Property within the surrounding
area. Preservation of the Property will continue to provide an opportunity for the
general public to appreciate its scenic values. Further, preservation of the
Property will serve to both maintain its natural and agricultural character and
provide relief from increasing residential development in the area. Last, the terms
of this Deed do not permit a degree of intrusion or future development that would
interfere with the essential scenic quality of the land.
E. Documentation of Present Conditions. Pursuant to §1.170A -14(g)(5) of the Treasury
Regulations and in order to document the condition of the Property as of the date of this Deed, a
report has been prepared by Michael Figgs, and dated April 11, 2003, and updated January, 2017
("Present Conditions Report"). The Present Conditions Report contains natural resources
inventories and also document the Conservation Values and the characteristics, current use, and
status of improvements on and development of the Property. The Present Conditions Reports are
acknowledged by Grantor and Grantee as an accurate representation of the Property at the time
of the transfer. The Present Conditions Reports have been provided to both parties and will be
used by Grantee to assure that any future changes in the use of the Property will be consistent
with the terms of this Deed. However, the Present Conditions Reports are not intended to
preclude the use of other evidence to establish the condition of the Property as of the date of this
Deed.
F. Charitable Donation. Grantor intends to create a conservation easement pursuant to § 170(h)
of the I.R.C. of 1986, as amended; §1.170A-14 of the Treasury Regulations; and §38-30.5-101 of
the .Colorado Revised Statutes, and hereby makes a charitable gift of the property interest
conveyed by this Deed to Grantee.
ACKNOWLEDGEMENT OF PURPOSE AND INTENT
As a guide to the interpretation of this Deed and administration of this Easement, the Parties, for
themselves, and for their successors and assigns, expressly declare their agreement and
dedication to the following purpose and intent:
I. Purpose. The purpose of this Easement is to preserve and protect the Conservation
Values in perpetuity in accordance with I.R.C. § 170(h), Treasury Regulation § 1.170A-
14, and C.R.S. §38-30.5 ("Purpose"). The Conservation Values are prioritized in order to
guide: (1) the perpetual protection and management of potentially conflicting
Conservation Values; and, (2) the approval, amendment, and termination requests
relating to potentially conflicting Conservation Values. Conservation Values shall be re -
prioritized following impossibility or non-existence of protecting a Conservation Value
Heine Amended and Restated Deed of Conservation Easement Page 6
such that the remaining Conservation Values take the place of the impossible or non-
existent Conservation Value in order of their original priority as relates to the remaining
Conservation Values, as described hereafter.
The priority of Conservation Values is as follows: the primary purpose of this
Easement is to protect the Property's wildlife habitat Conservation Value; the secondary
purpose of this Easement is to protect the Property's agricultural Conservation Value,
including the potential for community gardens or urban food supply; and the tertiary
purpose of this Easement is to protect the Property's scenic Conservation Value. This
priority shall be given due regard by Grantee when considering enforcement pursuant to
Section 9 herein, amendment pursuant to Section 11 herein, termination pursuant to
Section 16 herein, approval pursuant to Section 21 herein, and if or when proposed or
existing uses of the Property come into conflict under this Deed.
Should the Property's use for the primary purpose become impossible to achieve,
the Property shall continue to be protected for the secondary and tertiary purposes, and
remain available for the primary purpose. Should the Property's use for the secondary
purpose become impossible to achieve, the Property shall continue to be protected for the
tertiary purpose, and remain available for the primary and secondary purposes. Should
the Property's use for all of the listed purposes become impossible, the parties shall
proceed in accordance with Sections 16 and 17 below, and consistent with applicable
laws, to continue to honor the purposes set out for protection by this Deed.
It is also the purpose of this Deed to permit residential, educational, and other
uses of the Property that are not inconsistent with the foregoing goals, the preservation
and protection of the Conservation Values, or that are not otherwise specifically
prohibited by this Deed.
II. Intent. The intent of the Parties is for Grantor to voluntarily grant and for Grantee to
voluntarily accept an unrestricted gift of real property that makes possible without
requiring continued use of the Property for wildlife habitat, open space agricultural,
scenic, residential, recreational, or educational, purposes, subject to the limitations
described herein, in order of priority as described above ("Intent"). In this Deed,
"consistent with the Purpose" shall mean acts on and uses of the Property that do not
have significant negative impact or permanent negative impact on the Conservation
Values as determined by Grantee in its sole discretion. Nothing in this Deed is intended
to require a specific use of the Property, such as agriculture, or public access, although
the Property shall remain available for agriculture. It is also the purpose of this Deed to
permit other uses of the Property that are consistent with the foregoing goals.
III. Acknowledgment. Grantee acknowledges pursuant to IRC Section 170(f)(8) that: (i) this
Deed constitutes contribution of a conservation easement in the Property as described
herein; and (ii) Grantee provided no goods or services in consideration, in whole or in
part, for the contribution.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the Parties mutually agree as follows:
Heine Amended and Restated Deed of Conservation Easement Page 7
Conveyance of Easement. Grantor hereby voluntarily grants and conveys to Grantee, and
Grantee hereby voluntarily accepts, this Easement, an immediately vested interest in real
property, in perpetuity.
2. Rights Conveyed to Grantee. To accomplish the Purpose, the following rights are hereby
conveyed to Grantee, its employees and its representatives:
2.1. To preserve and protect the Conservation Values;
2.2. To prevent acts on or uses of the Property that are not consistent with the Purpose
and, except as limited by Section 7 (Responsibilities of the Parties Not Affected) of
this Deed, Grantee may require the restoration of such areas or features of the
Property that are damaged by an inconsistent act or use;
2.3. To enter upon the Property in order to monitor Grantor's compliance with the terms
of this Deed pursuant to Section 8 (Monitoring) of this Deed, and to enforce the terms
of this Deed pursuant to Section 9 (Enforcement) of this Deed.
2.4. To have all Development Rights as defined in Section 14 (Development Rights) of
this Deed, except as specifically reserved by Grantor herein.
2.5. To have all other rights conveyed by this Deed.
3. Rights Retained by Grantor. Grantor retains the right to perform any act not specifically
prohibited or restricted by this Easement, provided that such acts and uses are not
inconsistent with the Purpose. These retained rights include, but are not limited to, the
retention of the economic viability of the Property, including, but not limited to: the right to
lease pastureland and structures on the Property; the right to exclude any member of the
public or trespassers from the Property or from trespassing on the Property; the right to sell
or otherwise transfer the Property to anyone Grantor chooses, the right to honor existing and
to grant additional easements or rights of way across the Property; the right to perform
property surveillance and secure the Property by aerial or on the ground means with devices
such as cameras and motion sensors; the right to retain, improve, and protect the economic
viability of the Property, including its Environmental Attributes, defined below; and the right
to engage in or permit or invite others to engage in all uses of the Property that are not: (a)
expressly prohibited herein; (b) inconsistent with Section 170(h) of the Internal Revenue
Code, or any regulation promulgated thereunder; and (c) inconsistent with the purpose of this
Deed. Further, Grantor shall not be required to take any action to restore the condition of the
Property as a result of forces beyond Grantor's control, pursuant to Section 7.
Grantor hereby reserves all Environmental Attributes associated with the Property not
granted, restricted, or encumbered by this Deed or its terms. "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
Heine Amended and Restated Deed of Conservation Easement Page 8
conservation, preservation and management of the Property in accordance with this Deed,
except for those income tax benefits in the form of federal tax deductions and state tax credits
yielded from and obtained as a result of the grant of this Deed. Nothing in this Section shall
modify the restrictions imposed by this Deed or otherwise be inconsistent with Purpose.
4. Property Improvements. The parties agree that the current use of and improvements to the
Property are not inconsistent with the preservation and protection of the Conservation Values
and are permitted. Improvements existing as of the date of this Deed are permitted. All
other construction or placement of improvements is prohibited except as provided herein.
Without limiting the generality of any of the foregoing, Grantor and Grantee hereby
acknowledge and agree:
4.1. Residential and Nonresidential Structures. The construction, placement,
replacement, enlargement, maintenance and repair of residential and nonresidential
structures and improvements is permitted pursuant to the limitations set forth herein.
For purposes of this Deed, "Residential Improvements" are defined as covered
structures containing habitable space, including homes, cabins, guest houses, and any
space attached to a home, cabin or guest house such as a garage, and any other
structures intended for full or part-time human habitation. For purposes of this Deed,
"Nonresidential Improvements" are defined as covered structures and not intended for
human habitation and include, but are not limited to free-standing garages, picnic
pavilions, and agricultural structures such as barns, pole barns, sheds, or farmstands.
Nonresidential Improvements may include commercial structures, provided that such
commercial structures are consistent with the Purpose. Permitted commercial
structures may include, but are not limited to a nature center, incubation center for
urban agriculture, or an office space for organizations which have a Mission
consistent with the Purpose.
4.1.1. Building Envelopes. There shall be Two (2) building envelopes permitted on
the Property (individually referred to herein as "West Building Envelope"
and "East Building Envelope" and collectively referred to herein as the
"Building Envelopes"), with the West Building Envelope on the parcel west
of Parfet Street (referred to as the "West Heine Parcel") and the East
Building Envelope on the parcel east of Parfet Street (referred to as the "East
Heine Parcel'). All Residential Improvements and Nonresidential
Improvements (with the exception of Nonresidential Improvements permitted
by Section 4.1.2 below) constructed after the date of this Deed shall be located
within the Building Envelope(s).
4.1.1.1. West Building Envelope. The West Building Envelope consists of
1/2 (one-half) acre. The location of the West Building Envelope is
generally depicted on Exhibit B. On the date of this Deed, 2 (two)
improvements are located within the West Building Envelope, a
Residential Improvement consisting of 1,350 square feet of
Footprint, and I (one) Nonresidential Improvement consisting of 432
square feet of Footprint.
Heine Amended and Restated Deed of Conservation Easement Page 9
4.1.1.2. West Building Envelope Limitations. Grantor may construct, place,
replace, or enlarge Residential or Nonresidential Improvements
within the West Building Envelope subject to the following
limitations.
4.1.1.2.1. The maximum number of Residential Improvements
(including attached appurtenances) shall not exceed 1
(one) and shall have a maximum Footprint of 3,000
square feet and a maximum Height, as defined below, of
18 feet.
4.1.1.2.2. The maximum Height for each Nonresidential
Improvement shall not exceed 18 feet.
4.1.1.2.3. The total cumulative Footprint for all improvements,
including Residential and Nonresidential Improvements,
shall not exceed 8,000 square feet.
4.1.1.2.4. Improvements in excess of the foregoing require Grantee
approval pursuant to Section 21 (Grantee's Approval) of
this Deed.
4.1.1.2.5. Unenclosed improvements having no Footprint, such as
corrals, bird watching blinds, wildlife viewing areas,
informational and directional signage, trailhead, bedding
starts, or temporary season -extender structures (e.g. hoop
houses) without a foundation, are permitted if consistent
with the Purpose and Intent.
4.1.1.3. East Building Envelope. The East Building Envelope consists of 1
(one) acre. The location of the East Building Envelope is generally
depicted on Exhibit B. On the date of this Deed, 7 (seven)
improvements are located within the East Building Envelope, there
are two Residential Improvements consisting of 3,180 square feet of
Footprint, and 5 (five) Nonresidential Improvements consisting of
2,748 square feet of Footprint.
4.1.1.4. East Building Envelope Limitations. Grantor may construct, place,
replace, or enlarge Residential or Nonresidential Improvements
within East Building Envelope subject to the following limitations.
4.1.1.4.1. The maximum number of Residential Improvements in
use at any one time (including attached appurtenances)
without approval pursuant to Section 21 (Grantee's
Approval) of this Deed, shall not exceed 1 (one) and shall
Heine Amended and Restated Deed of Conservation Easement Page 10
have a maximum Footprint of 3,000 square feet and a
maximum Height, as defined below, of 28 feet.
4.1.1.4.2. The maximum Height for each Nonresidential
Improvement shall not exceed 28 feet.
4.1.1.4.3. The total cumulative Footprint for all improvements
including Residential and Nonresidential Improvements
shall not exceed 8,000 square feet.
4.1.1.4.4. Improvements in excess of the foregoing require Grantee
approval pursuant to Section 21 (Grantee's Approval) of
this Deed.
4.1.1.4.5. Unenclosed improvements having no Footprint, such as
corrals bird watching blinds, wildlife viewing areas,
informational and directional signage, bedding starts, or
temporary season -extender structures (e.g. hoop houses)
without a foundation, are permitted if consistent with the
Purpose and Intent.
4.1.2. Outside of the Building Envelope(s). On the date of this Deed, there are three
(3) agricultural improvements located outside of the Building Envelopes, with
two (2) on the West Heine Parcel and one (1) on the East Heine Parcel.
4.1.2.1. Construction Limitations. Grantor may construct, place, replace or
enlarge Nonresidential Improvements outside of Building Envelopes
subject to the following:
4.1.2.1.1. The maximum number of Nonresidential Improvements
on the Property shall not exceed 6 (six), with no more
than 3 (three) apiece on each of the West and East Heine
Parcels.
4.1.2.1.2. With one exception, the maximum Footprint for each
Nonresidential Improvement shall not exceed 300 square
feet. The one exception is for one of the two existing
Nonresidential Improvements on the West Heine Parcel,
which is a barn consisting of 672 square feet of Footprint.
This Nonresidential Improvement may be repaired or
may be enlarged or replaced with a Nonresidential
Improvement with a maximum Footprint of 800 square
feet and provided that such improvement shall continue
to be located on the West Heine Parcel.
Heine Amended and Restated Deed of Conservation Easement Page 11
4.1.2.1.3. The maximum Height for each Nonresidential
Improvement shall not exceed 18 feet.
4.1.2.1.4. The total cumulative Footprint for all Nonresidential
Improvements on the Property shall not exceed 2,000
square feet, with a cumulative 1,100 square feet
maximum on the West Heine Parcel and a cumulative
900 square feet maximum on the East Heine Parcels.
4.1.2.1.5. Improvements in excess of the foregoing require Grantee
approval pursuant to Section 21 (Grantee's Approval) of
this Deed.
4.1.2.1.6. Unenclosed improvements having no Footprint, such as
corrals, bird watching blinds, wildlife viewing areas,
informational and directional signage, bedding starts, or
temporary season -extender structures (e.g. hoop houses)
without a foundation, are permitted if consistent with the
Purpose.
4.1.3. Repair and Maintenance. Grantor may repair and maintain permitted
improvements without further consent of Grantee.
4.1.4. Notice. Prior to the placement, construction, replacement or enlargement of
any Residential Improvement or Nonresidential Improvement as permitted by
Section 4.1.1, Grantor shall notify Grantee in writing not less than sixty (60)
calendar days prior to the date Grantor intends to undertake the activity in
question. The written notice shall describe the proposed improvement in
sufficient detail (i.e. location, size, scope, design, nature) to allow Grantee to
evaluate the consistency of the proposed improvement with this Section.
4.1.5. Definition of Footprint. For purposes of this Deed, Footprint is defined as
the total ground area occupied by all Residential Improvements or
Nonresidential Improvements, calculated on the basis of the exterior
dimensions (whether at or above ground level) including carports or
breezeways, but does not include eaves, uncovered decks or patios
("Footprint").
4.1.6. Measurement of Height. For purposes of this Deed, Height is defined as the
vertical distance from the low point of the grade at the structure perimeter to
the high point of the structure, ("Height"). For the purposes of this Deed,
"Grade at the structure perimeter" means that either the natural grade or the
finished grade, whichever is lower in elevation.
4.2. Other Improvements.
Heine Amended and Restated Deed of Conservation Easement Page 12
4.2.1. Roads and Parking Areas. For purposes of this Deed, Improved Roads shall
be defined as any road, driveway or parking area that is graded, drained, or
has a surface other than the natural earthen material ("Improved Roads") and
Unimproved Roads shall be defined as any track greater than three (3) feet
wide where the natural earthen material is the driving surface ("Unimproved
Roads").
4.2.1.1. Within the Building Envelope(s). Construction, maintenance,
paving (e.g. concrete, asphalt, or other impermeable material) or
otherwise surfacing of all Improved and Unimproved Roads is
permitted within the Building Envelope(s). Parking areas are
permitted in both the East and West Building Envelopes, provided
they are consistent with Purpose. Prior to the placement,
construction, replacement or enlargement of any parking area,
Grantor shall notify Grantee pursuant to Section 21 (Grantee's
Approval).
4.2.1.2. Outside of the Building Envelope(s).
4.2.1.2.1. Improved Roads. No Improved Roads shall be
constructed or established outside of the Building
Envelope(s) except for those permitted Improved Roads
depicted on Exhibit B or unless Grantee determines that
the proposed road is consistent with the Purpose, pursuant
to Section 21 (Grantee's Approval) of this Deed.
Permitted Improved Roads may be relocated provided
that the abandoned road shall be promptly revegetated
and restored to a condition that is consistent with the
Purpose, pursuant to Section 21 (Grantee's Approval) of
this Deed. Improved Roads shall be no wider than
physically or legally necessary to provide access.
4.2.1.2.2. Unimproved Roads. No Unimproved Roads shall be
constructed or established outside of the Building
Envelope(s) except for Unimproved Roads that are
consistent with the Purpose. No Unimproved Road shall
be altered to become an Improved Road unless Grantee
determines that the proposed alteration is consistent with
the Purpose, determined pursuant to Section 21
(Grantee's Approval) of this Deed.
4.2.2. Trails. Multiuse trails for pedestrian, equestrian and bicycle or other non -
motorized wheeled use, such as wheelchairs (with or without motors) are
permitted subject to the following and provided that they are consistent with
the Purpose. Such trails shall be no more than 6 feet in width at any point.
Permitted surface materials include crushed rock, wood chips, fine granular
Heine Amended and Restated Deed of Conservation Easement Page 13
stone (also referred to as crusher fines or decomposed granite) or recycled
material, or wood, recycled wood or plastic lumber. Access shall be at the
owner's discretion pursuant to Section 6.6 (Public Access). Prior to the
placement, construction, replacement or enlargement of any trail, Grantor
shall notify Grantee pursuant to Section 21 (Grantee's Approval).
4.2.3. Fences. Existing fences may be maintained, repaired and replaced and new
fences may be built anywhere on the Property, provided that the location and
design of said fences are consistent with the Purpose. Notwithstanding the
foregoing, the construction of kennel facilities, or permanent corrals on the
Existing Conservation Area is prohibited. For the purposes of this Deed,
kennel facilities shall be defined as any enclosed area in which single or
multiple domestic or household animals are maintained, boarded, bred, or
cared for.
4.2.4. Signs. Existing signs may be maintained, repaired and replaced (with signs
similar in character and size) in their current location. New signs may be
placed and maintained on the Property provided that the number and size of
the new signs are consistent with the Purpose.
4.2.5 Utilities. Existing utilities may be repaired and replaced in their same location
with a structure similar to the type they replace without any further permission
of Grantee. Grantor may install new utility lines or relocate existing utility
lines provided such new or relocated utility lines shall be installed
underground in the new or existing roads or driveways as depicted on Exhibit
B. The addition of utility lines or the relocation or significant upgrading of
existing utility lines may be approved by Grantee if Grantee determines said
utility lines are not inconsistent with the Purpose. 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. Any easement, right of way or other interest granted to a
third party or otherwise reserved, to be used for Utility Improvements is
subject to Section 6.9 (Easements, Rights of Way or Other Interests) of this
Deed.
Renewable energy generation systems are permitted for limited use on
the Property which shall mean such use is primarily for the purpose of
allowing Grantor to offset its energy consumption, subject to the restrictions
above. Any such limited renewable energy generated on the Property in
accordance with this paragraph that incidentally is 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.
5. Resource Management. Grantor recognizes the importance of good resource management
and stewardship to preserve and protect the Conservation Values. To this end, the following
uses of the Property shall be conducted in accordance with the provisions below. If Grantee
believes any resource management practice(s) are not consistent with the Purpose, Grantee,
Heine Amended and Restated Deed of Conservation Easement Page 14
in addition to all of its rights under this Deed, may request that the Parties consult with a
mutually acceptable resource management professional. This professional will provide
written recommendations for said resource management practice(s). The cost of this
consultation shall be borne by Grantor. Grantee shall determine whether said
recommendations are consistent with the Purpose.
5.1 Agriculture. Generally, all agricultural uses shall be conducted 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. Specifically, all agricultural and livestock
grazing uses shall be conducted using sound range management practices. The
definition of "sound range management" shall be determined by the United States
Department of Agriculture's local office of the Natural Resources Conservation
Service (or its successor), or a qualified range management specialist mutually agreed
upon by Grantor and Grantee. Long term management and stewardship 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. All pastures and open range shall
be maintained in good condition. During times of drought, grazing shall be managed
and if necessary reduced to maintain good grass cover. Hay pastures, both irrigated
and dry land, may be replanted, seeded, cut, fertilized, burned, harvested, and
maintained. Grantor retains the right to conduct agricultural and livestock
operation(s) in a manner consistent with sound range or farming management
practices or both, and to lease the Property with appurtenant water rights for
agricultural purposes permitted hereunder. Permitted agricultural operations include,
but are not limited to livestock grazing, community-based gardening and food
production, bee -keeping, and all other agricultural activities consistent with the
purpose of the Deed. The storage of agricultural products and byproducts on the
Property is permitted, so long as the storage complies with all applicable federal,
state, county or local laws, rules, ordinances and regulations. The establishment or
maintenance of a commercial feedlot is prohibited as that term is defined and
described in Section 6.5 herein. Nothing in this Section 5.1 or Section 6.5 herein
shall prevent Grantor from seasonally confining its own livestock into an area, corral
or other facility for feeding or calving, or from leasing pasture for the grazing of
livestock owned by others.
If agricultural acts or uses are no longer practiced on the Property, either Party may
request that the Parties develop a mutually acceptable plan to ensure appropriate land
cover that is consistent with the Purpose. The expense of developing and
implementing said plan shall be borne by Grantor.
5.2. Timber. On a limited and localized basis, trees may be cut to control insects and
disease, to control invasive non-native species, to prevent personal injury and
property damage, and for domestic uses on the Property such as firewood and
Heine Amended and Restated Deed of Conservation Easement Page 15
construction of permitted improvements. Tree thinning activities are permitted to
maintain the character and nature of the wildlife habitat. Other timber harvesting
activities shall be conducted in accordance with a forest management plan prepared
by a professional forester at Grantor's expense, provided that Grantee determines that
said activities and management plan are consistent with the Purpose, pursuant to
Section 21 (Grantee's Approval) of this Deed.
5.3. Relatively Natural Habitat. Habitat management activities that have the potential to
negatively impact the Conservation Values such as chaining juniper or sagebrush,
constructing or altering ponds, wetlands, or stream channels, and conducting
controlled burns may be permitted provided that Grantee determines that said
management activities are consistent with the Purpose, pursuant to Section 21
(Grantee's Approval) of this Deed. Grantor may undertake planting flower or
vegetable gardens inside the Building Envelope, and planting native trees, shrubs, and
wildflowers anywhere on the Property, which activities and uses are permitted by this
Deed.
5.4. Minerals. For the purposes of this Deed, minerals shall be defined as soil, sand,
gravel, rock, stone, decorative stone, gold and other rare earth elements, oil, natural
gas, coalbed methane (including any and all substances produced in association
therewith from coalbearing formations), hydrocarbon, fossil fuel, or any other mineral
substance, of any kind or description, on, in, under or part of the Property
(collectively referred to as "Minerals").
5.4.1. Ownership of Minerals. As of the date of this Deed, Grantor owns all of or a
controlling interest in the Minerals and mineral rights located on, under, or in
the Property or otherwise associated with the Property. Grantor shall not
transfer or otherwise separate any mineral rights from the Property.
5.4.2. Mineral development. The exploration, development, mining or other
extraction or removal of Minerals, conducted on, under, or in the Property or
otherwise associated with the Property by any method is prohibited.
Notwithstanding the foregoing, subject to Grantee's approval Section 21
(Grantee's Approval), Minerals may be removed from below the surface of
the property provided that the location of all equipment, pumps, storage
facilities, pipelines, and any other infrastructure, or other activities necessary
for extraction, storage, or transportation is located off of the Property,
extraction takes place off the Property, and that the method and means of
extraction is consistent with the Purpose.
5.4.3. Notice Related to Minerals. Grantor agrees that by granting this Easement to
Grantee, it has given Grantee a portion of its ownership interest in the
Property, and by so doing, given Grantee the same legal rights as Grantor to
influence and control impacts to the surface of the Property from exploration
or development of Minerals. This ownership interest does not include any
right for Grantee to receive any income, royalties or lease payments from
Heine Amended and Restated Deed of Conservation Easement Page 16
exploration or development of Minerals. Grantee's ownership interest
requires that if Grantor is contacted verbally or in writing regarding the
Minerals, Grantor shall provide written notice, copy, or description to Grantee
of said contact within ten (10) days.
5.4.3.1. For purposes of this Deed, the term "Mineral Document" shall mean
any lease, pooling agreement, unitization agreement, surface use
agreement, no -surface occupancy agreement, or any other instrument
related to Minerals.
5.4.3.2. Grantor shall not enter into any Mineral Document without Grantee
approval pursuant to Section 21 (Grantee's Approval) to ensure that
said document is consistent with the Purpose and this Section, and
Grantee shall have the right but not the obligation to be a party to any
such agreement, if Grantee chooses, in its sole discretion. Grantee
shall have the right to charge a fee to Grantor for time and costs
associated with review of any Mineral Document.
5.4.4 Geothermal Resources. The development and use of geothermal resources is
permitted with Grantee approval pursuant to Section 21 (Grantee's Approval).
5.5. Recreation. Low -impact recreational uses such as wildlife watching, hiking,
horseback riding, cross-country skiing, hunting and fishing are permitted, provided
they are consistent with the Purpose. Golf courses are prohibited on the Property.
Other buildings and facilities for any other public or private recreational use may only
be built on the Property in accordance with Section 4A(1), and then only in a manner
that is consistent with the Purpose, except that use of the Property for more than "de
minimis" commercial recreation activity is prohibited. The term "de minimis" shall
have the meaning as set forth in §2031 (c)(8)(B) of the I.R.C. and the Treasury
regulations adopted pursuant thereto.
5.6. Weeds. The Parties recognize the potential negative impact of noxious weeds and
invasive plant species on the Conservation Values. Grantor shall manage noxious
weeds and invasive plant species in a manner consistent with the Purpose, in
compliance with applicable federal, state, county or local laws, rules, ordinances and
regulations, and in a manner to prevent any adverse impact to the Conservation
Values of the Property. Noxious weed management shall not prevent Grantor from
planting flower or vegetable gardens anywhere on the Property, or from planting
native trees, shrubs and wildflowers anywhere on the Property, which activities and
uses are permitted by this Deed. Grantee has no responsibility for the management of
noxious weeds and invasive plant species.
5.7. Water Rights. The Property subject to this Easement includes any and all decreed
and undecreed and water rights, ditches and ditch rights, springs and spring rights,
reservoir and reservoir rights, wells and groundwater rights, and any other types of
rights related to the ownership of water, tributary, non -tributary and not non -tributary,
Heine Amended and Restated Deed of Conservation Easement Page 17
appurtenant to or customarily or historically used or associated with or upon the
Property, together with any and all of the rights associated with the historical and
beneficial use of any of the embankments, flumes, headgates, measuring devices or
any other structures that are appurtenant to those water rights, along with all
easements and rights of way therefor including but not limited to those specifically
described in Exhibit C attached hereto and made a part of this Deed (collectively, the
"Dedicated Water Rights"). Grantor shall not transfer, encumber, sell, lease or
otherwise separate the Water Rights from the Property. Grantor shall not change the
historic use of the Water Rights without the prior written consent of, and
determination by, Grantee that such change is not inconsistent with the Purpose.
Pursuant to C.R.S. § 38-30.5-102, which authorizes the inclusion of "water rights
beneficially used upon the land ... owned by Grantor" in a conservation easement, the
Property subject to this Easement includes any and all right, title and interest in and to
the water rights described in Exhibit C ("Water Rights").
5.7.1. Permitted Uses of Water Rights. The Parties agree that the Water Rights are
hereby dedicated and restricted exclusively to be used for the preservation and
protection of the Conservation Values ("Permitted Water Uses"), and that
Grantor shall continue to maintain their historic beneficial use.
5.7.2. Restrictions on Water Rights. Grantor shall not transfer, encumber, sell,
lease or otherwise separate the Water Rights from the Property. Grantor shall
not abandon or allow abandonment of the Water Rights by action or inaction.
Grantor shall not change the historic beneficial use of the Water Rights unless
Grantee determines that said change is consistent with the Purpose, pursuant
to Section 21 (Grantee's Approval) of this Deed. No change of the point of
diversion of the Water Rights shall be submitted for judicial approval unless
Grantee determines that the proposed change of point of diversion is
consistent with the Purpose, pursuant to Section 21 (Grantee's Approval) of
this Deed.
5.7.3. Protection of Water Rights. Grantor shall cooperate with Grantee to help
assure the continued historical beneficial use of the Water Rights in order to
preserve and protect the Conservation Values. Grantee may request that
Grantor report to Grantee annually regarding the nature and extent of
Grantor's use of the Water Rights during the prior year, which report need not
be in writing. Grantor shall also provide Grantee with copies of any reports or
correspondence submitted to the State or Division Engineer or Water
Commissioner. Grantor shall provide Grantee with a copy of any written
notice or pleadings received by Grantor from any state water official or any
other person concerning the possible abandonment of the Water Rights within
30 days of receipt thereof.
5.7.4. Abandonment of Water Rights. If the Water Rights appear on decennial
abandonment list, or if Grantee determines that the Water Rights are subject to
a threat of abandonment, Grantee shall give Grantor written notice of such
Heine Amended and Restated Deed of Conservation Easement Page 18
threat. Grantor shall also be considered notified if Grantor receives notice
from any state water official or any other person concerning the possible
abandonment of the Water Rights. Upon notification, the Parties shall work in
good faith to develop and implement a mutually acceptable strategy to cure
the threat of abandonment. Grantor shall have 90 -days from notification to
demonstrate action to rebut the presumption of abandonment of the Water
Rights. If the Parties cannot reach a mutual agreement, or Grantor has failed
to take action to cure the threat of abandonment of the Water Rights within 90
days of notification, Grantee shall, in addition to any other remedies available
to Grantee under this Deed or by law, have the right to (i) enter upon the
Property and undertake any and all actions reasonably necessary to continue
the historical use of the Water Rights; (ii) seek removal of the Water Rights
from the abandonment list; (iii) defend the Water Rights against any other
claim of abandonment; (iv) seek to change the Water Rights to another
Permitted Water Use; and (v) require Grantor to convey all or part of the
Water Rights to Grantee for continued use on the Property or elsewhere in the
same water district or elsewhere consistent with Grantee's mission. Grantor
agrees to cooperate in any manner necessary to accomplish Grantee's election,
and at Grantee's request, agrees to authorize and appoint Grantee as its agent
and attorney-in-fact to file for and obtain any administrative or judicial
approvals required to effectuate Grantee's election.
5.7.5. Ditch or Reservoir Company. C.R.S. §38-30.5-104(5) requires that, when a
conservation easement encumbers a water right represented by shares in a
mutual ditch or reservoir company, sixty (60) days' notice must be given to
said company before the conservation easement may be conveyed. This
requirement has been fulfilled.
5.7.6. Notice Relating to Water Rights. If Grantor receives written notice regarding
the Water Rights, including notices from any state water official or ditch
company, Grantor shall provide a copy of said notice to Grantee within ten
(10) days, or sooner if the notice requires a response or action within that
period, exclusive of regular annual meeting notices or assessment invoices.
6. Restricted Practices.
6.1. Subdivision. The division, partition, subdivision or de facto subdivision of the
Property, whether by legal or physical process, into more than two parcels of land or
partial or separate interests (including, but not limited to, condominium interests or the
partition of undivided interests) is prohibited. The Property or description of the
Property may identify or include one or more legal parcels; however, this subdivision
restriction shall apply to these separately described parcels of land such that the West
Heine and East Heine Parcels can only be subdivided from each other into two parcels,
as divided by Parfet Street. Ownership of the West Heine and East Heine Parcels by
joint tenancy or tenancy in common is permitted, consistent with Sections 29 (Joint and
Several Liability) and 30 (Ownership by Single Entity Consisting of Multiple Parties);
Heine Amended and Restated Deed of Conservation Easement Page 19
provided, however, that Grantor shall not undertake any legal proceeding to further
partition, subdivide or divide in any manner the two undivided interests in the parcels
West Heine Parcel and East Heine Parcel. The single division of the Property shall be
permitted such that the West Heine Parcel may be sold separately from the East Heine
Parcel, provided that at all times both parcels shall remain subject to the terms of this
Easement. No other division of the Property is permitted. At the time of the
permitted division, the Water Rights identified in Exhibit C shall be divided as they
have been used historically on the West Heine Parcel and the East Heine Parcel. If an
alternative division of the water rights is proposed with the permitted division of the
Property, Grantor shall provide a plan which identifies the portion of the Water
Rights that are to be allocated to each such parcel, and shall prepare and provide to
Grantee such water engineer reports, easements, water sharing agreements, water
deeds and other documentation as are necessary to effectuate such plan, for the
review by Grantee to determine that the plan adequately protects the Conservation
Values of each parcel, and for the approval of Grantee in its reasonable discretion.
6.2. Surface Disturbance. Except as permitted within this Easement, any alteration of the
surface of the Property, including without limitation, the excavation or removal of
soil, sand, gravel, rock, peat or sod, that is inconsistent with the Purpose, is
prohibited. Surface disturbance associated with vegetation management, wildlife
habitat management or enhancement, or to improve the Conservation Values is
permitted. Notwithstanding the foregoing, soil, sand, gravel or rock may be extracted
from the Property provided that: (i) no more than a 10 foot by 10 foot area of the
Property is disturbed at any one time; (ii) such extraction shall have no more than
limited, localized impact on the Property; (iii) such extraction shall be associated with
permitted acts on and uses of the Property; and (iv) Grantee determines that such
extraction is consistent with Purpose pursuant to Section 21 (Grantee's Approval) of
this Deed. Once extraction is complete, Grantor shall promptly restore any disturbed
area to a condition consistent with the Purpose. This Section shall be interpreted in a
manner that is consistent with I.R.C. § 170(h) and the Treasury Regulations adopted
pursuant thereto.
6.3. Water Improvements. The maintenance and repair of existing non-domestic water
improvements such as ponds, reservoirs, stock tanks, center pivot sprinklers,
irrigation ditches, pipes, headgates, flumes, pumps, or wells is permitted. The
construction of new water improvements or enlargement of existing water
improvements, excluding ponds and reservoirs, is permitted provided that such
activity is consistent with the Purpose. The enlargement of existing ponds or
reservoirs, or the construction of new ponds or reservoirs, is permitted provided that
Grantee determines that said activities are consistent with the Purpose, pursuant to
Section 21 (Grantee's Approval) of this Deed. Any portion of the Property that is
disturbed by the maintenance, repair, construction or enlargement of water
improvements shall be restored to a condition that is consistent with the Purpose
promptly after said activity is completed. Further, Grantor may construct, maintain,
repair and replace wells, cisterns, and septic or leach systems within and outside of
the Building Envelope to serve the permitted Residential Structures inside the
Heine Amended and Restated Deed of Conservation Easement Page 20
Building Envelope in accordance with applicable regulations of Jefferson County and
the State of Colorado.
6.4. Commercial or Industrial Activity. Commercial or industrial uses that are not
consistent with the Purpose are prohibited. The Property may be used for agricultural
uses, including but not limited to animal husbandry, breeding, raising, grazing and
pasturing of bees, poultry, horses, cattle, cows, mules, sheep, goats, and llamas,
haying, gardening, vegetable production, and continuation of current agricultural
practices in a manner that does not adversely impact the Conservation Values of the
Property, and processing or sale of farm, garden, or ranch products predominantly
grown or raised on the Property, including the right to lease the Property for such
uses, or to allow other uses of the Property such as public or social events including
but not limited to fundraisers, educational opportunities, community gardening, when
such events (1) are not inconsistent with the Purpose of this Deed; (2) have no
permanent, irreversible adverse impact on the Conservation Values of the Property;
and (3) conform to applicable federal, state, county or local laws, rules, ordinances
and regulations. Notwithstanding the foregoing, all leases shall comply with Section
23 (Lease or Transfer of Property).
6.5. Feed Lot. The establishment or maintenance of a commercial feed lot is prohibited.
For purposes of this Deed, "commercial feed lot" is defined as a confined area or
facility within the Property which is not grazed or cropped annually, and which is
used to receive livestock that have been raised off the Property for feeding and
fattening for market. Nothing in this section or Section 5.1 shall prevent Grantor from
temporarily or seasonally confining livestock into an area, corral or other facility for
feeding or calving, or from leasing pasture for the grazing of livestock owned by
others.
6.6. Public Access. Nothing contained herein shall be construed as affording the public
other than visual access to any portion of the Property at this time, although the
Grantor may permit public access to the Property on such terms and conditions as she
deems appropriate, including. but not limited to, supervised educational access, such
as school field trips, community gardening or farming opportunities, or managed
pedestrian or equestrian trail access, provided that such access is consistent with the
Purpose. To the extent Grantor permits public access, Grantor shall comply with all
applicable requirements of law affording access to persons with disabilities. Unless
or until Grantee is the owner of the Property, Grantee does not have the right to grant
any public access to the Property without Grantor's consent.
6.7. Trash. The dumping or permanent accumulation of any kind of trash, sludge, or
refuse on the Property is prohibited, except for farm -related trash and refuse produced
on the Property, provided that such dumping or accumulation is consistent with the
Purpose. The storage or accumulation of agricultural products and by-products on the
Property is permitted provided that such activity is conducted in accordance with all
applicable government laws and regulations and is consistent with the Purpose.
Heine Amended and Restated Deed of Conservation Easement Page 21
6.8. Hazardous Materials. Grantor may use agri-chemicals on the Property in accordance
with all applicable federal, state or local law. Otherwise, the treatment, permanent
storage, disposal or release of hazardous materials on, from or under the Property is
prohibited. For purposes of this Deed, "Hazardous Materials" shall mean any
"hazardous substance" as defined in §9601(14) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended ("CERCLA"),
"pollutant or contaminant" as defined in § 9601(33) of CERCLA, or any hazardous
waste as defined in C.R.S. §25-15-101(6). 40 C.F.R. § 302.4 provides a non -
exhaustive list of over 600 substances that qualify as hazardous substances under
CERCLA. The use, treatment, storage, disposal, or release of Hazardous Materials
shall only be permitted in accordance with applicable, federal, state and local law and
regulations.
6.9. Motorized Vehicle Operation. The operation of motorized vehicles for purposes
associated with permitted acts on and uses of the Property is permitted provided that
such operation is consistent with the Purpose and Intent.
6.10. Easements, Rights of Way or Other Interests. The conveyance or modification of an
easement, right of way, Mineral Document or other similar interest is prohibited
unless Grantee determines that the proposed conveyance or modification is consistent
with the Purpose and Intent pursuant to Section 21 (Grantee's Approval) of this Deed.
7. Responsibilities of Grantor and Grantee Not Affected. Other than as specified herein, this
Deed is not intended to impose any legal or other responsibility on Grantee, or in any way to
affect any existing obligations of Grantor as owner of the Property. Additionally, unless
otherwise specified below, nothing in this Deed shall require Grantor to take any action to
restore the condition of the Property after any Act of God or other event over which Grantor
had no control, including without limitation drought, fire, flood, storm, earth movement and
insect infestations (which includes spruce beetles and pine beetles) or from any prudent
action taken by Grantor under emergency conditions to prevent, abate or mitigate significant
injury to the Property resulting from such forces, and the actions of trespassers, third parties,
or any persons beyond Grantor's control. Grantor shall continue to be solely responsible and
Grantee shall have no obligation for the upkeep and maintenance of the Property and Grantor
understands that nothing in this Deed relieves Grantor of any obligation or restriction on the
use of the Property imposed by law. Among other things, this shall apply to:
7.1. Taxes. Grantor shall continue to be solely responsible for payment of all taxes and
assessments levied against the Property. If Grantee is ever required to pay any taxes
or assessments on its interest in the Property, Grantor will reimburse Grantee for the
same. If for any reason Grantor fails to pay any taxes, assessments or similar
requisite charges, Grantee may pay such taxes, assessments or similar requisite
charges, and may bring an action against Grantor to recover all such taxes,
assessments and similar charges plus interest thereon at the rate charged delinquent
property taxes by the county assessor's office in which the Property is located.
Heine Amended and Restated Deed of Conservation Easement Page 22
7.2. Liability. Grantor shall indemnify, defend, and hold Grantee and its members,
officers, directors, employees, agents, and contractors (collectively, the "Indemnified
Parties") harmless from and against any and all loss, damage, cost, or expense,
including reasonable attorneys' fees, arising from or in any way related to: (i) the
existence, generation, treatment, storage, use, disposal, deposit or transportation of
Hazardous Materials in, on or across the Property; (ii) the release or threatened
release of Hazardous Materials on, at, beneath or from the Property; (iii) the existence
of any underground storage tanks on the Property; or (iv) a violation or alleged
violation of, or other failure to comply with, any federal, state, or local environmental
law or regulation by Grantor or any other prior owner of the Property.
7.2.1. Notwithstanding anything in this Deed to the contrary, this Deed does not
impose any liability on Grantee for Hazardous Materials, nor does it make
Grantee an owner of the Property, nor does it require Grantee to control any
act on or use of the Property that may result in the treatment, storage, disposal
or release of Hazardous Materials, all within the meaning of CERCLA or any
similar federal, state or local law or regulation.
7.2.1.1. Grantor's Liability. Grantor shall indemnify, defend, and hold the
Indemnified Parties harmless from and against any and all loss,
damage, cost, or expense, including reasonable attorneys' fees,
arising from or in any way related to: (i) injury to or the death of any
person, or damage to property, occurring on or about or related to the
Property, unless caused solely by the willful and wanton act or
omission [as defined by C.R.S. §13-21-102(1)(b)] of the Indemnified
Parties; (ii) the obligations under this Section; or (iii) the violation or
alleged violation of, or other failure to comply with any state,
federal, or local law, regulation, or requirement by any person other
than any of the Indemnified Parties, in any way affecting, involving,
or relating to the Property.
7.2.1.2. Grantee's Liability. Grantee shall indemnify, defend and hold
Grantor and its assigns, successors and heirs harmless from and
against any and all loss, cost or expense, including reasonable
attorney's fees, arising from or in any way related to injury to or
death of any person occurring on or about or related to the Property
arising out of the Indemnified Parties' actions on the Property.
8. Monitoring. In order to monitor Grantor's compliance with the terms of this Deed, Grantee
shall have the right to enter upon the Property upon reasonable prior notice to Grantor. Said
notice need not be in writing. Grantee may engage such experts or consultants that Grantee
deems necessary to assist in monitoring, including conducting aerial flyovers of the Property.
Such entry shall not unreasonably interfere with Grantor's use and quiet enjoyment of the
Property.
Heine Amended and Restated Deed of Conservation Easement Page 23
9. Enforcement. General Provisions. Grantee shall have the right to prevent and correct or
require correction of violations of the terms of this Deed. If Grantee determines that
immediate entry is required to inspect for, prevent, terminate, or mitigate a violation of the
terms of this Deed, Grantee may enter the Property without advance notice. If such entry
occurs, Grantee shall promptly notify Grantor within as soon as possible thereafter. If
Grantee determines that a violation caused by Grantor has occurred, Grantee shall notify
Grantor of the nature of the alleged violation. Said notice need not be in writing. Upon
receipt of said notice, Grantor shall immediately cease the alleged violation and either (i) if
necessary, provide a written plan for restoration and remediation of the Property and, once
approved, restore or remediate the Property in accordance with the plan; or (ii) provide
written documentation demonstrating that the activity is permitted and is not a violation.
Grantee's acceptance of Grantor's actions under (i) or (ii) above shall be in Grantee's sole
discretion, and shall be confirmed by Grantee in writing. If Grantor is unable or unwilling to
immediately cease the alleged violation, and comply with (i) or (ii) above, the Parties agree
to resolve the dispute through mediation or judicial processes. At any point in time, Grantee
may take appropriate legal action, including seeking an injunction, to stop the alleged
violation.
Grantee has the right to proceed against any third party or parties whose actions threaten or
damage the Purpose, including the right to pursue all remedies and damages against the
violator provided in this paragraph 9. Grantee shall consult Grantor prior to proceeding
against any third party violator, and Grantee and Grantor may mutually agree to collaborate
to enforce the Deed against the third party violator.
9.2. Costs of Enforcement. Any costs incurred by Grantee in enforcing the terms of this
Deed against Grantor, including, without limitation, costs and expenses of suit,
attorneys' fees and any costs of restoration necessitated by Grantor's violation of the
terms of this Deed, shall be borne by Grantor. If the deciding body determines that
Grantee has acted in bad faith in seeking to enforce the terms of this Deed, the Parties
shall each be responsible for their own costs. If the Parties agree to mediation, the
Parties will equally share the cost of the mediator's fees.
9.3. Grantee's Discretion. Grantee's remedies described in this Section shall be
cumulative and shall be in addition to 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. Enforcement of the terms of this Deed shall be
at the discretion of Grantee, and the failure of Grantee to discover a violation or to
take action shall not waive any of Grantee's rights, claims or interests in pursuing any
such action at a later date.
10. Deed Correction. The Parties shall cooperate to correct mutually acknowledged errors in
this Deed (and exhibits hereto), including typographical, spelling, or clerical errors. Such
correction shall be by recorded written agreement signed by the Parties, with all associated
costs being apportioned as the Parties may mutually agree.
Heine Amended and Restated Deed of Conservation Easement Page 24
11. Amendment. If circumstances arise under which an amendment to this Deed would be
appropriate, as determined by Grantee in its sole discretion, the Parties are free to jointly
amend this Deed by mutual written consent. However, no amendment shall be allowed that
will (i) confer a private benefit to Grantor or any other individual greater than the benefit to
the general public [see Treasury Regulation § 1. 1 70A- I 4(h)(3)(i)]; (ii) result in private
inurement for a board member, staff or contract employee of Grantee [see Treasury
Regulation § 1.501(c)(3) -1(c)(2)]; (iii) affect the qualifications of this Easement under any
applicable laws; or (iv) affect the perpetual duration of the Easement. Grantee shall have the
right to charge a fee to Grantor for time and costs associated with any amendment. Any
amendment must be in writing, signed by the Parties, and recorded in the official records of
Jefferson County, Colorado.
12. Transfer of Easement. This Easement is transferable by Grantee, provided that (i) the
conservation purposes which the contribution was originally intended to advance continue to
be carried out; (ii) the transfer is restricted to an organization that, at the time of the transfer,
is a qualified organization under I.R.C. § 170(h) and authorized to hold conservation
easements under C.R.S. §§38-30.5-101, et seq. and C.R.S. §12-61-720; and (iii) the qualified
organization agrees to assume the responsibility imposed on Grantee by this Deed. Grantee
shall notify Grantor in advance of any proposed transfers. If Grantee ever ceases to exist, a
court with jurisdiction is authorized to transfer this Easement pursuant to (i), (ii), and (iii)
above.
13. Transfer of Property. Any time the Property or a permitted portion thereof is transferred by
Grantor to any third party, Grantor shall notify Grantee in writing within five (5) business
days after closing using the form in Exhibit D, and shall include a copy of the new ownership
deed. The document of conveyance shall expressly refer to this Deed. Grantor shall pay a
fee of 1/4 of I% of the purchase price, including the value of non-cash consideration, to
Grantee as holder of the real property interest and right of possession represented by this
Deed, excluding transfer to Grantor's direct descendants and family members, as defined by
the I.R.C., or to Grantee, and excluding transfers for the sole purpose of changing the type of
legal entity by which title is held. This provision is intended to run with the land for
perpetuity, and to touch and concern the Property burdened by this easement by providing
Grantee a contribution toward its stewardship, enforcement and defense of this Easement. If
a fee is attributable to a transfer of property classified as "residential real property," as
defined in C.R.S. Section 38-35-127(2)(e), then the Grantee covenants and agrees that the fee
shall be used for the purposes specified in C.R.S. Section 38-35-127(2)(b)(V) in a manner
consistent with the Grantee's mission.
14. Development Rights. For purposes of this Deed, "Development Rights" are defined as all
present or future rights to (i) construct, place, replace, enlarge, maintain or repair any
improvements on the Property; or (ii) receive credit for density for development on or off the
Property. By this Deed, Grantor conveys to Grantee all Development Rights associated with
the Property except those Development Rights specifically reserved by Grantor, which
include the right to make Residential Improvements and Nonresidential Improvements
pursuant to Section 4.1 (Residential and Nonresidential Structures) of this Deed. Therefore,
Heine Amended and Restated Deed of Conservation Easement Page 25
Grantor does not have the right to use or transfer any Development Rights held by Grantee.
15. Condemnation. Grantor shall notify Grantee immediately of any communication or notice
received concerning any proposed taking or condemnation affecting the Property, and
Grantee shall have the right to participate in any proceedings as a real property interest
holder. Grantee may pursue any remedies in law or in equity, including opposition to the
condemnation of the Property. If the Property or any part thereof or interest therein is sold or
conveyed to a condemning authority under threat of condemnation or taken through
condemnation or other involuntary conversion, Grantee shall be entitled to compensation
determined as provided in Section 17 (Compensation upon Condemnation, Termination, or
Extinguishment) of this Deed.
16. Termination or Extinguishment of Easement. Except as provided in Section 15
(Condemnation) of this Deed, this Easement or any part hereof may only be terminated or
extinguished by judicial proceedings in a court of competent jurisdiction. The only ground
upon which this Easement can be terminated or extinguished is the total loss of all
Conservation Values. If termination or extinguishment occurs, Grantee shall be entitled to
compensation determined as provided in Section 17 (Compensation upon Condemnation,
Termination, or Extinguishment) of this Deed.
17. Compensation upon Condemnation, Termination, or Extinguishment.
17.2. The Parties acknowledge that that (i) an appraisal of the Existing Conservation Area
was completed that indicated that the fair market value of the of the property interest
conveyed by the First Conservation Easement was eighty percent (80%) of the full
fair market value (the "Existing Conservation Area Percentage"); (ii) an appraisal
of the Amended and Restated Deed of the Heine Conservation Easement was
completed which indicated the fair market value of the property interest conveyed by
the Amended and Restated Deed is fifty-five percent (55%) of the full fair market
value ("New Conservation Area Percentage"). For purposes of this Deed, the
Existing Conservation Area Percentage and the New Conservation Area Percentage
shall collectively be referred to as.the "Proportionate Value Percentages." The
Proportionate Value Percentages shall remain constant and shall be applied pursuant
to Treasury Regulation § 1. 1 70A- I 4(g)(6)(ii).
17.3. If the Property is condemned, in whole or in part, pursuant to Section 15
(Condemnation) or if this Easement is terminated or extinguished pursuant to Section
16 (Termination or Extinguishment of Easement), Grantee shall be entitled to a share
of the proceeds of such action at least equal to the Proportionate Value Percentage of
the full fair market value of the Property unrestricted by this Easement pursuant to
Treasury Regulation § 1. 170A- 14(g)(6)(ii). Grantor shall not voluntarily accept less
than full fair market value of the affected Property unrestricted by this Easement
without Grantee's approval.
Heine Amended and Restated Deed of Conservation Easement Page 26
17.4. Grantee's use of its share of such proceeds shall comply with Treasury Regulation §
1.170A -14(g)(6).
17.5. Grantee's remedies described in this Section 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. No Merger, Abandonment, Release, orAdverse Possession. Should Grantee in the future
own all or a portion of the fee interest in the Property, Grantee as successor in title to
Grantor, shall observe and be bound by the obligations of Grantor and the restrictions
imposed on the Property by this Deed. In addition, this Easement shall not merge with the
fee title without the prior written approval of Grantor. The Easement shall not be
extinguished, in whole or in part, through the legal doctrine of merger in view of the public
interest in its enforcement. This Easement cannot be abandoned, released, or affected by
adverse possession.
19. Perpetual Duration. This Easement shall be a servitude running with the land in perpetuity.
The provisions of this Deed that apply to either Party shall also apply to their respective
agents, heirs, executors, administrators, assigns, and all other successors as their interests
may appear. Notwithstanding the foregoing, each party's rights and obligations under the
Easement created by this Deed shall terminate (as to such party, but not as to such party's
successor, who shall be bound as provided herein) upon a transfer of the party's entire
interest in this Easement or the Property, except that liability of such transferring party for act
or omissions occurring prior to such transfer shall survive the transfer.
20. Change of Circumstance. Grantor has considered that restricted acts or uses may become
more economically valuable than permitted acts or uses. It is the intent of the Parties that
such circumstances shall not justify the termination or extinguishment of this Easement
pursuant to Section 16 (Termination or Extinguishment of Easement) of this Deed. In
addition, the inability to carry on any or all of the permitted acts and uses, or the
unprofitability of doing.so, shall not impair the xalidity of this Easement or be considered
grounds for its termination or extinguishment pursuant to Section 16 (Termination or
Extinguishment of Easement) of this Deed.
21. Grantee's Approval. Where Grantee's approval is required by this Deed, Grantor shall
provide written notice to Grantee not less than sixty (60) calendar days prior to the date
Grantor intends to undertake the act or use, with sufficient detail (i.e. location, size, scope,
design and nature) to allow Grantee to evaluate the consistency of the proposed act or use
with the Purpose, giving weight, consideration, and due regard to the prioritization of
purposes set out by this Deed. Grantee shall approve or deny Grantor's written request, or
notify Grantor of a delay in Grantee's decision, in writing, within forty-five (45) calendar
days of receipt of Grantor's written request, unless a different time period is specified herein,
or mutually agreed to. If Grantee denies Grantor's request, Grantee shall include with its
written determination the reason(s) for its determination set forth with specificity, and any
and all possible modifications to the proposal that would make it consistent with the Purpose,
Heine Amended and Restated Deed of Conservation Easement Page 27
and therefore approvable. Grantee shall only approve acts or uses consistent with the
Purpose. Grantor shall not engage in the proposed act or use until Grantor receives Grantee's
approval in writing.
22. Written Notices. Any written notice that either Party is required to give to the other shall be
delivered: (i) in person; (ii) via certified mail, with return receipt requested; (iii) via a
commercial delivery service that provides proof of delivery; or (iv) via any delivery method
mutually agreed to by the Parties, to the following addresses, unless one Party has been
notified by the other Party of a change of address or ownership.
Grantor: Karin Heine
4596 Parfet Street
Wheat Ridge, Colorado 80023
(303) 425-5626
Grantee: Colorado Open Lands
1546 Cole Boulevard, Suite 200
Lakewood, CO 80401
(303) 988-2373
If addresses change, Grantor shall provide updated information to Grantee in a timely
manner. If a notice mailed to either Party at the last address on file is returned as
undeliverable, the sending Party shall provide notice by regular mail to the other Party's last
known address on file with the tax assessor's office of the county in which the Property lies,
and the mailing of such notice shall be deemed compliance with this Section. Notice given
to the designated representative of a trust or business entity shall be deemed notice to the
trust or business entity, and notice given to the designated representative of a common or
jointly held ownership shall be deemed notice to all owners.
23. Subsequent Liens. No provisions of this Deed should be construed as impairing the ability
of Grantor to use the Property as collateral for subsequent borrowing. Any mortgage or lien
arising from such a borrowing is and shall remain subordinate to this Easement or any
amendments hereto.
24. Grantor's Representations and Warranties.
24.1 Grantor represents and warrants to the best of its actual knowledge that Grantor: i)
has good and sufficient title to the Property, free from all liens and encumbrances
securing monetary obligations except ad valorem property taxes for the current year;
ii) has the right to grant access to the Property to Grantee for the purposes described
in this Deed and has in fact granted said access to Grantee t this grant of conservation
easement; and iii) shall defend title to the Property against all claims that may be
made against it by any person claiming by, through, or under Grantor.
24.2 Grantor represents and warrants that, after reasonable investigation and to the best of
Grantor's actual knowledge during her ownership of the Property:
Heine Amended and Restated Deed of Conservation Easement Page 28
24.2.1 No Hazardous Materials exist or have been generated, treated, stored, used,
disposed of, deposited, or transported, in, on, or across the Property; there has
been no release or threatened release of any hazardous materials on, at,
beneath, or from the Property; and there are no underground storage tanks
located on the Property;
24.2.2 Grantor and the Property are in compliance with all federal state, and local
laws, regulations, and requirements applicable to the Property and its use;
24.2.3 There is no pending or threatened litigation in any way affecting, involving, or
relating to the Property; and
24.2.4 No civil or criminal proceedings or investigations have been threatened or are
now pending, and no notices, claims, demands, or orders have been received,
arising out of any violation or alleged violation of, or failure to comply with,
any federal, state, or local law, regulation, or requirement applicable to the
Property or its use.
25. Acceptance. Grantee hereby accepts without reservation the rights and obligations created
by this Deed for which no goods or services were exchanged or provided.
26. General Provisions:
26.1. Severability. If any provision of this Deed, or the 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.
26.2. 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.
26.3. Waiver of Defenses. Grantor hereby waives any defense of laches, estoppel or
prescription and acknowledges and agrees that the one-year statute of limitation
provided under C.R.S. § 38-41-119 does not apply to this Easement, and Grantor
waives any rights of Grantor pursuant to such statute. Upon Grantor's request,
Grantee shall provide a document of estoppel or an estoppel certificate certifying the
degree to which Grantor is at the time in compliance with this Deed.
26.4. Controlling Law. The provisions of this Deed are subject to the laws of the United
States and the State of Colorado as amended (or any successor provision then
applicable), and the applicable regulations promulgated thereunder.
26.5. Liberal Construction. The provisions of this Deed are to be liberally construed in
favor of the Purpose, and any ambiguities or questions regarding the validity of
Heine Amended and Restated Deed of Conservation Easement Page 29
specific provisions shall be interpreted in favor of maintaining the Purpose. Any
decisions resolving such ambiguities or questions shall be documented in writing.
26.6. Counterparts. The Parties may execute this Deed in two or more counterparts which
shall, in the aggregate, be signed by all parties. All counterparts, when taken
together, shall constitute this Deed, and shall be deemed the original instrument as
against any party who has signed it.
26.7. Entire Agreement. This Deed sets forth the entire agreement of the Parties with
respect to the terms of this Deed and supersedes all prior discussions, negotiations,
understandings, or agreements relating to the terms of this Deed, all of which are
merged herein. Upon execution and recordation of this Deed, the Original Deed is
hereby amended and restated in its entirety by this Deed, and the Original Deed shall
be superseded by this Deed and have no further force or effect; provided, however,
that such amendment and restatement shall not interrupt the perpetual duration of the
Original Deed or the property rights which vested in Grantee upon the recording of
the Original Deed.
27. Recording. Grantor shall record this Deed in a timely fashion in the official records of
Jefferson County, Colorado, and Grantee may re-record it at any time as may be required to
preserve its rights in this Easement.
28. No Third Party Enforcement. This Deed is entered into by and between the Parties, and
does not create rights or responsibilities for the enforcement of its terms in any third parties.
29. Joint and Several Liability. If Grantor at anytime owns the Property in joint tenancy or
tenancy in common, Grantor shall be jointly and severally liable for all obligations set forth
in this Deed.
30. Ownership by Single Entity Consisting of Multiple Parties. If Grantor at any time is an
entity which consists of shareholders, partners or members, such Grantor entity is required to
include in its operating agreement, bylaws or other documents setting forth the rights and
responsibilities of the entity, the right to assess such shareholders, partners or members for
any monetary or other obligations set forth in this Deed. Grantor shall provide a copy of
such documentation at any time upon Grantee's request.
31. Authority to Execute. Each party represents to the other that such party has full power and
authority to execute and deliver this Deed, and perform its obligations under this Easement,
that the individual executing this Deed on behalf of said party is fully empowered and
authorized to do so, and that this Deed constitutes a valid and legally binding obligation of
said party enforceable against said party in accordance with its terms.
TO HAVE AND TO HOLD, this Deed of Conservation Easement unto Grantee, its
successors and assigns, forever.
IN WITNESS WHEREOF, the Parties, intending to legally bind themselves, have
Heine Amended and Restated Deed of Conservation Easement Page 30
set their hands on the date first written above.
Heine Amended and Restated Deed of Conservation Easement Page 31
GRANTOR:
By: %� Y
Karin Heine
STATE OF COLORADO )
) ss.
COUNTY OF JEFFERSON )
The foregoing instrument was acknowledged before me this I day of Febr ,
201 t3, by Karin Heine in her individual capacity as owner of the Property.
Witness my hand and official seal.
My commission expires: �P.Cpy� bPit l 1 I a09-1
Notary Publi
ELIZABETH ECKSTEIN
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20134076790
MY COMMISSION EXPIRES DECEMBER 11, 2021
Heine Amended and Restated Deed of Conservation Easement Page 32
GRANTEE:
COLORADO OPEN LANDS,
a Colorado non-profit corporation
BY
� � /. a4,4� -
Antho y P. Caligiuri, Presiden
STATE OF COLORADO )
) ss.
COUNTY OF JEFFERSON )
s�
The foregoing instrument was acknowledged before me this day of
Febrt,tc,6j , 2018,%y Anthony P. Caligiuri as President of Colorado Open Lands, a
Colorado on -profit corporation.
Witness my hand and official seal.
My commission expires: De 0 -e -w1 I 1 t 20 2
Notary Public
ELRABETI'1 ECKSTEIN
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20134076790
MY COMMISSION EXPIRES DECEMBER 11,2021
Heine Amended and Restated Deed of Conservation Easement Page 33
EXHIBIT A
LeLral Description of the Property
Existing Conservation Area
PARCEL C: LOTS 1, 2 AND 3, BUSH SUBDIVISION, COUNTY OF JEFFERSON, STATE OF COLORADO.
New Conservation Area
PARCEL A: (AS SET FORTH IN ORDER AND DECREE QUIETING TITLE RECORDED SEPTEMBER 2,
2015 UNDER RECEPTION NO. 2015094073):
A PARCEL OF LAND BEING A PORTION OF THE NORTHWEST QUARTER OF SECTION 21, TOWNSHIP
3 SOUTH, RANGE 69 WEST OF THE 6TH P.M. CITY OF WHEAT RIDGE, COUNTY OF JEFFERSON,
STATE OF COLORADO. BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF THE NORTHWEST QUARTER OF SAID SECTION 21,
WHENCE THE EAST LINE OF THE NORTHWEST QUARTER OF SAID SECTION 21 BEARS N 00° 18'33"
W FORMING THE BASIS OF BEARING FOR THIS DESCRIPTION; THENCE N 00° 18'33" W ALONG SAID
EAST LINE, A DISTANCE OF 1515.50 FEET; THENCE S 89° 30'13" W A DISTANCE OF 264.04 FEET TO
THE POINT OF BEGINNING; THENCE S 89'21'17" W A DISTANCE OF 263.96 FEET TO A POINT ON THE
EASTERLY RIGHT OF WAY LINE OF PARFET STREET; THENCE ALONG SAID EASTERLY RIGHT OF
WAY LINE N 000 18'33" W A DISTANCE OF 190.93 FEET; THENCE N 89'33'21" E A DISTANCE OF
263.96 FEET; THENCE S 00° 18'33" E A DISTANCE OF 190.90 FEET TO THE POINT OF BEGINNING.
PARCEL B: (AS SET FORTH IN ORDER AND DECREE QUIETING TITLE RECORDED SEPTEMBER 2,
2015 UNDER RECEPTION NO. 2015094073): -
A PARCEL OF LAND BEING A PORTION OF THE NORTHWEST QUARTER OF SECTION 21, TOWNSHIP
3 SOUTH, RANGE 69 WEST OF THE 6TH P.M. CITY OF WHEAT RIDGE, COUNTY OF JEFFERSON,
STATE OF COLORADO. BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF THE NORTHWEST QUARTER OF SAID SECTION 21,
WHENCE THE EAST LINE OF THE NORTHWEST QUARTER OF SAID SECTION 21 BEARS N 00° 18,33"
W FORMING THE BASIS OF BEARING FOR THIS DESCRIPTION; THENCE N 00° 18'33 " W ALONG SAID
EAST LINE, A DISTANCE OF 1423.13 FEET TO THE POINT OF BEGINNING; THENCE S 89'41'05" W A
DISTANCE OF 528.00 FEET TO A POINT ON THE EASTERLY RIGHT OF WAY LINE OF PARFET
STREET; THENCE ALONG SAID EASTERLY RIGHT OF WAY LINE N 00° 18'33" W A DISTANCE OF
90.00 FEET; THENCE N 89'21'17" E A DISTANCE OF 263.96 FEET; THENCE N 89° 30'13" E A DISTANCE
OF 264.04 FEET TO A POINT ON THE EAST LINE OF THE NORTHWEST QUARTER OF SAID SECTION
21, THENCE ALONG SAID EAST LINE, S 00° 18'33" E A DISTANCE OF 92.35 FEET TO THE POINT OF
BEGINNING.
PARCEL D:
A TRACT OF LAND IN THE NORTHEAST 1/4 OF THE NORTHWEST 1/4 SECTION 21, TOWNSHIP 3
SOUTH, RANGE 69 WEST DESCRIBED AS FOLLOWS: BEGINNING AT A POINT 730 5/12THS FEET
SOUTH OF NORTHWEST CORNER OF NORTHEAST 1/4 NORTHWEST 1/4, THENCE SOUTH 293 FEET,
THENCE EAST AT RIGHT ANGLES TO SAID WEST LINE 742 FEET, THENCE NORTH AT RIGHT
ANGLES 293 FEET, THENCE WEST AT RIGHT ANGLES 742 FEET TO PLACE OF BEGINNING. EXCEPT
PORTION THEREOF DESCRIBED IN DEED RECORDED OCTOBER 27, 1927 IN BOOK 300 AT PAGE 348,
Heine Amended and Restated Deed of Conservation Easement Page 34
AND EXCEPT RIGHT OF WAY DESCRIBED IN INSTRUMENT RECORDED DECEMBER 14, 1923 IN
BOOK 259 AT PAGE 92, COUNTY OF JEFFERSON, STATE OF COLORADO.
PARCEL E: A PART OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER (NE 1/4 NW 1/4)
OF SECTION 21, TOWNSHIP 3 SOUTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN,
DESCRIBED AS FOLLOWS:
BEGINNING AT THE WEST LINE OF SAID NORTHEAST QUARTER OF THE NORTHWEST QUARTER
554 2/12THS FEET SOUTH OF THE NORTHWEST CORNER OF SAID NORTHEAST QUARTER OF THE
NORTHWEST QUARTER, THENCE SOUTH ON SAID WEST LINE OF THE NORTHEAST QUARTER OF
THE NORTHWEST QUARTER, 176.25 FEET; THENCE AT RIGHT ANGLES EAST, 371 FEET; THENCE AT
RIGHT ANGLES NORTH, 176.25 FEET; THENCE AT RIGHT ANGLES WEST, 371 FEET TO THE POINT OF
BEGINNING. COUNTY OF JEFFERSON, STATE OF COLORADO.
Heine Amended and Restated Deed of Conservation Easement Page 35
EXHIBIT B
Map of Property
HEINE WILDLIFE SANCTUARY ADR CONSERVATION EASEMENT
JEFFERSON COUNTY
Heine Amended and Restated Deed of Conservation Easement Page 36
!
_
We,147th Avenue ...
_
Off.
New Conservation Area
k
- .
Existing Conservation Area
West Heine Parcel
1
West
5 6
Biildinng
Envelope
3�1
4
East
N
a
Building
'i
Envelope
r.
8
New Conservation Area -
Fast Heine Parcel
s4
Wezf 45th Avenue
,. West 45th Avenue -"
i Point ID X
Y
1 -105.121715
39.781358
Legend
, �;
west 2 -105.121145
39.781358
Conservation Easement Boundary
R i
3 -105.121145
39.780956
East Building Envelope
_
4 -105;121714
39.780955
5 -105.120547
39.781189 -
West Building Envelope
6 -105.120011
39.781191
! Building Envelope Points
7 -105.120009
39.780418
" 8 -105.120545
39:780417
N
Prepueri;Colored. Open Lands Date: 10!17!2017
0 50 100 200
300
Public Access should not be infarrcd from Ws mV, This map is not a guq ey and sbould not. be consumed as one.
1 i 1 1 1 1 1 2 1 a 1
1 Feet
Heine Amended and Restated Deed of Conservation Easement Page 36
EXHIBIT C
Water Rights
Previously Dedicated Water Rights Historically Used on the East Heine Parcel
Two shares Capital Stock of The Brown and Baugh Ditch Company, represented by share
certificate number 306, representing a proportionate interest in 10.0 c.f.s. of water decreed as
Clear Creek Priority No. 45, by Decree of the District Court of Arapahoe County on October 4,
1884.
New Dedicated Water Rights — Historically Used on the West Heine Parcel
Ten shares Capital Stock of The Brown and Baugh Ditch Company, represented by share
certificate numbers 313, 316, and 331, representing a proportionate interest in 10.0 c.f.s. of water
decreed as Clear Creek Priority No. 45, by Decree of the District Court of Arapahoe County on
October 4, 1884.
Heine Amended and Restated Deed of Conservation Easement Page 37
EXHIBIT D
Sample Notice of Transfer of Property
To: Colorado Open Lands ("Grantee")
From: [Insert name of fee owner] ("Grantor")
Pursuant to Section 10 of the Deed of Conservation Easement, Grantee is hereby notified by
Grantor of the transfer of the fee simple interest in the subject Property legally described in
Exhibit A attached hereto effective [insert date of closing] to [insert name of new Grantor],
who can be reached at [insert name, legal address, phone and fax number].
GRANTOR:
By:
Title:
STATE OF COLORADO )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
20_, by
Date:
as of
Witness my hand and official seal.
My commission expires:
Notary Public
Heine Amended and Restated Deed of Conservation Easement Page 38