HomeMy WebLinkAbout8789RESOLUTION NO. 8789
A RESOLUTION APPROVING A GRANT AGREEMENT BETWEEN
THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND THE
STATE BOARD OF THE GREAT OUTDOORS COLORADO TRUST
FUND RELATING TO THE BIG HILL LAND ACQUISITION, AND
AUTHORIZING THE PRESIDENT OF COUNCIL TO EXECUTE SAME
WHEREAS, the City of Pueblo has received a grant from the State Board of the Great
Outdoors Colorado to fund the Big Hill Land Acquisition, subject to the execution of a grant agreement;
and
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1
The Grant Agreement dated June 30, 1999, between the City of Pueblo, a Municipal
Corporation, and the State Board of the Great Outdoors Colorado Trust Fund, for the Big Hill Land
Acquisition, a copy of which is attached hereto (except a copy of the City's complete grant application
which is on file in the office of the City Clerk) having been approved as to form by the City Attorney, is
hereby approved.
SECTION 2
The President of City Council is hereby authorized to execute and deliver said Grant
Agreement in the name of and on behalf of the City of Pueblo, a Municipal Corporation, and the City
Clerk shall affix the seal of the City thereto and attest same.
SECTION 3
Funds in the amount of $30,000, Undesignated Fund Balance, Account No. 001- 70 -90, are
hereby appropriated, budgeted and irrevocable pledged to meet the City of Pueblo's financial obligations
under the Grant Agreement.
SECTION 4:
The resolution will become effective upon final passage
INTRODUCED: August 23,1999
BY: Cathy A. Garcia
COUNCIL PER ON
APPROVE U I
ATTESTED BY:
C Y CLERK
Council Agenda
TITLE: A RESOLUTION APPROVING A GRANT
AGREEMENT BETWEEN THE CITY OF
PUEBLO, A MUNICIPAL CORPORATION,
AND THE STATE BOARD OF THE GREAT
OUTDOORS COLORADO TRUST FUND
RELATING TO THE BIG HILL LAND
ACQUISITION, AND AUTHORIZING THE
PRESIDENT OF COUNCIL TO EXECUTE
SAME
AGENDA ITEM #
DEPARTMENT PLANNING & DEVELOPMENT
DATE AUGUST 23, 1999
ISSUE: Should the City Council approve an agreement between the City of Pueblo and the
State Board of the Great Outdoors Colorado Trust Fund for the Big Hill Land Acquisition and
authorize the President of Council to execute the agreement?
BACKGROUND: The City will be committing to acquire approximately 31acres of privately
owned land known as "Big Hill ". The City has received a grant from the Board of the Great
Outdoors Colorado Trust Fund, Open Space Program, in the amount of $100,000 for the
acquisition of the Big Hill property. The property is located east of the Colorado State Hospital
and west of Freed Middle School and the Pioneer Cemetery. The City will be required to use
this land only as open space. The City will convey a conservation easement for perpetuity to a
third party steward, to implement the use restriction. The adjacent 9 acres to the north was
donated to the City in 1998 and will combine with this property to create a 40 acre urban open
space. The land acquisition is estimated to be completed within one year.
The estimated budget for the land acquisition is $155,000, which includes the following funding
sources:
$ 100,000 Great Outdoors Colorado Trust Fund
$ 30,000 City of Pueblo's Cash Match
$25,000 Courtright's In -Kind Land Donation
$155,000 TOTAL COST
RECOMMENDATION: Approval of the Resolution.
FINANCIAL IMPACT: The City of Pueblo will receive a $100,000 payment from Great
Outdoors Colorado upon the completion of the project. The City's $30,000 cash match will
come from the Undesignated Fund Balance, Account No. 001- 70 -90. The land must be
maintained and used by the City, in perpetuity, as urban open space.
1 i
GRANT AGREEMENT
PROJECT:
Name: Big Hill Land Acquisition
Project Completion Date: June 22, 2000
Great Outdoors Colorado
Contract No.: 9039
PARTIES TO AGREEMENT:
Board: The State Board of the Great Outdoors Colorado Trust Fund
Address: 1600 Broadway, Suite 1650
Denver, CO 80202
Telephone:
Fax:
Contact name
(303) 863 -7522
(303) 863 -7517
Janis Whisman
Grantee: City of Pueblo
Address: 211 East'D' Street
Pueblo, CO 81003
Telephone:
Fax:
Contact name
Date:
(719) 543 -6006
(719) 543 -0572
Steven Meier
August 12, 1999
EXHIBITS
Exhibit A Project Application
Exhibit B Conservation Easement Form
Exhibit C Due Diligence Checklist for a Great Outdoors Colorado Open Space
Acquisition Project
Exhibit D Stewardship Policy
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RECITALS
A. The State Board of the Great Outdoors Colorado Trust Fund (the "Board ")
is a political subdivision of the State of Colorado, created by Article XXVII of the
Colorado Constitution, adopted at the November, 1992 General Election, which article
appropriates a portion of the net proceeds of the Colorado Lottery to the Board and
directs the Board to invest those proceeds in the State's parks, wildlife, open space and
recreational resources.
B. In 1994, the Board created a statewide grant program, pursuant to which
eligible entities could apply for land conservation project grants to which Grantee
responded with a detailed application, a copy of which is attached hereto and
incorporated herein by reference as Exhibit A (the "Project Application "). The Project
Application contemplates the acquisition of the real property interest described in the
Project Application (the "Property ") (the "Project ").
C. The Great Outdoors Colorado Use Restriction (as hereinafter defined) is
in furtherance of the policy adopted by the State Board of the Great Outdoors Colorado
Trust Fund, that the acquisition of the real property interest is consistent with the long -
range strategic plan of Great Outdoors Colorado, which is to ensure that the property
interests shall be held and managed in a manner designed to protect their open space
values, to prevent development that would adversely affect such values, and where
necessary and appropriate to ensure appropriate public access.
D. The Board approved Grantee's Project Application on 06/22/99, subject to
the execution of a detailed grant agreement, and subject to the conditions set forth
herein.
E. Grantee has undertaken responsibility for obtaining the match (cash and
in -kind contributions) described in the Project Application.
F. The parties intend this agreement to be the detailed grant agreement
required by the Board (the "Agreement ").
AGREEMENT
NOW, THEREFORE, in consideration of the premises contained herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Grant and Project The Board hereby awards to Grantee the sum not to exceed
$100,000, subject to the terms of this Agreement (the "Grant "). The Grant shall be used
by Grantee solely to complete the Project, as approved by the Board. Grantee hereby
agrees to use its best efforts to complete the Project.
2. Project scone The Project will not be materially modified by Grantee without
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the written approval of the Executive Director of the Board ( "Executive Director ").
3. CONDITIONS PRECEDENT TO ACQUISITION AND DISBURSEMENT:
GRANTEE SHALL NOT ACQUIRE THE REAL PROPERTY INTEREST DESCRIBED IN THE
PROJECT APPLICATION, AND THE BOARD SHALL NOT BE OBLIGATED TO DISBURSE
ANY FUNDS UNDER THIS AGREEMENT UNLESS AND UNTIL THE FOLLOWING
CONDITIONS PRECEDENT HAVE BEEN MET:
a. Great Outdoors Colorado Use Restriction Property acquired with Board
funds, whether through the acquisition of fee title, conservation easement, or any
other technique, shall be held and managed in a manner designed to protect the
Property's natural resources and other open space values, to prevent any development
that would adversely affect such resources and values, and where appropriate, to
ensure public access. This policy shall be implemented by inclusion of specific
language in a conservation easement or such other technique as approved by the
Executive Director in his discretion (referred to herein as the "Great Outdoors Colorado
Use Restriction" or "Use Restriction "). Each Use Restriction shall be acceptable to the
Board in form and content. All liens, encumbrances or other use restrictions and
interests of record which, in the Board's opinion, are inconsistent with a Great
Outdoors Colorado Use Restriction must be discharged, released or subordinated to
the Use Restriction before the Board shall release its funds for the Grant. If the Use
Restriction is implemented by a conservation easement, then the conservation
easement shall be executed in substantially the form attached hereto as Exhibit B. In
accordance with the foregoing, the Grantee hereby covenants and agrees with respect
to the Use Restriction:
(1) Recording. At the time of closing, all documents which evidence the
Use Restriction shall be filed of record with the clerks and recorders of each county in
which the Property is located.
(2) Amendments. No amendment of the Use Restriction shall be allowed
without the prior written approval of the Board.
(3) Reserved rights. The sellers of the Property may not reserve any rights
that are inconsistent with the Use Restriction without the prior written approval of the
Board.
(4) Third Party Steward. Each Use Restriction shall identify a third party
acceptable to the Board (the "Steward ") who shall hold the right to enforce the Use
Restriction. If the Steward finds what it believes is a violation of the Use Restriction,
the Steward and the Grantee shall immediately notify the Board in writing of the nature
of the alleged violation.
(5) Steward's Rights. The Use Restriction shall explicitly permit the
Steward to: a) preserve and protect the open space and conservation values of the
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Property; b) enter upon the Property at reasonable times and on reasonable notice to
the owner in order to monitor compliance with the terms and conditions of the use
restriction, provided that Steward will not unreasonably interfere with the owner's use
and quiet enjoyment of the Property; c) prevent any activity on or use of the Property
that is inconsistent with the purpose of the easement; and d) require the restoration of
such areas or features of the Property that may be damaged by any inconsistent use.
At the Board's discretion, the use restriction may also contain prohibitions on uses of
the Property that are inconsistent with the use restriction.
(6) Extinguishment. If circumstances arise in the future which render the
purpose of the Use Restriction impossible to accomplish, the Use Restriction can be
terminated or extinguished, whether in whole or in part, only by judicial proceeding in
a court of competent jurisdiction. Each party to the Use Restriction shall promptly
notify the Board when it learns of such circumstances. In the event of condemnation
or termination, the Board shall be entitled to receive that portion of the net proceeds of
condemnation or sale of the Property that is equal to a fraction, the numerator of
which is the Grant and the denominator of which is the fair market value of the
Property, without deduction for the value of the use restriction, at the time the Grant
payment is made.
(7) Assignment of Use Restriction. The Use Restriction is transferable, but
the holder of the Use Restriction may only assign its rights and obligations under the
Use Restriction to an organization that is: (a) a qualified organization at the time of
transfer under Section 170(h) of the Internal Revenue Code of 1954, as amended (or
any successor provision then applicable), and the applicable regulation promulgated
thereunder; (b) authorized to acquire and hold conservation easements under
Colorado law; and (c) approved as a transferee by the Board. As a condition of such
transfer, the holder of the Use Restriction shall require that the purposes the Use
Restriction is intended to advance will continue to be accomplished. The Board shall
have the right to require the holder of the Use Restriction assign its rights and
obligations under the Use Restriction to a different organization if the holder of the Use
Restriction ceases to exist or for any reason fails or refuses to enforce the terms and
provisions of the Use Restriction.
(8) Transfer of Property Interest. The holder of the Use Restriction will
incorporate the terms of the Use Restriction in any deed or other legal instrument by
which it divests itself of any interest in all or a portion of the Property, including without
limitation, a leasehold interest. The holder of the Use Restriction further agrees to give
written notice to the Board of the transfer of any interest at least twenty (20) days prior
to the date of such transfer.
(9) Water Rights. Grantee will assure the Use Restriction contains a
clause requiring sufficient water rights to be retained with the Property to maintain the
conservation values of the Property and to accomplish the conservation purposes of
the Project.
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b. Information to Be Provided Prior to Execution of This Agreement Prior to
execution of this Agreement, Grantee will submit the following information to the
Board's staff:
(1) A resolution adopted by the governing body of Grantee authorizing
the execution of this Agreement and approving its terms and conditions.
(2) A detailed budget or accounting (the "Budget ") for the Project and
all material revisions to this Budget. The Budget will itemize the sources and uses of
all funds and other resources necessary to complete the Project, including a detailed
accounting of Grantee's direct and indirect costs associated with the Project.
Allowable costs are described in Paragraph 4 herein. The Board reserves the right to
terminate further funding if, in the judgment of the Executive Director of the Board, the
character of the changes to the scope, schedule or timing of the Project has caused it
to become materially different from that approved by the Board or if there have been
delays in the implementation of the Project which, in the Executive Director's
reasonable judgment, make the Project impracticable.
(3) Where necessary, written evidence that all permits and approvals
required for project completion under applicable local, state and federal laws and
regulations have been obtained.
C. Review of Documents Prior to the disbursement of funds, the Board or a
duly appointed agent must review and approve:
(1) All title and acquisition documents pertaining to the acquisition or
encumbrance of the Property, including but not limited to environmental hazards
assessments, appraisals, title commitments, purchase agreements, Use Restrictions,
escrow or closing instructions, and conveyance instruments.
(2) All other documents required by the Due Diligence Checklist for a
Great Outdoor Colorado Open Space Acquisition Project, attached
as Exhibit C and further detailed in the Great Outdoors Colorado's
Technical Supplement to 1999 Open Space Awards issued January
11, 1999 (the "Technical Supplement "). The Technical
Supplement is hereby incorporated by reference. This agreement
is subject to the additional terms, conditions and provisions in the
Technical Supplement as may be amended from time to time with
the mutual consent of the Board and Grantee. Grantee
acknowledges that it has received a copy of the Technical
Supplement or otherwise has access to the document in
connection with this agreement and is familiar with its
requirements.
(3) The number, location, design and wording of signs and placards to
be placed on the real property as provided in Paragraph 11 of this Agreement on
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signage.
d. Title Insurance Where feasible, Grantee shall obtain an ALTA Owner's
Policy of title insurance for the amount of the Project, but in no event shall the title
policy amount be less than the amount of the Grant (the "Title Policy "). Grantee shall
provide a copy of the Title Policy to the Executive Director. The Title Policy shall insure
the Steward as the owner of the Use Restriction, subject only to restrictions and
exceptions which are acceptable to the Executive Director.
e. Other Conditions Disbursement shall also be subject to the following
other conditions:
(1) No material modifications or delays have been made or
experienced (or the Board has been advised of the modifications or delays and has
elected to continue to participate in the funding of the Project);
(2) Matching funding has been received (or the status of efforts to
secure matching funding has been disclosed to Board staff and has been deemed
satisfactory by Board staff); and
(3) The representations made to the Board in the grant applications
continue to be true (or, if there have been any material changes, the Board has been
advised of such changes and has assented to them).
f. Waiver The Executive Director may waive one or more of the previous
conditions to disbursement or may allow satisfaction of one or more of these
conditions subsequent to disbursement.
4. Eligible Costs The following costs are eligible for reimbursement under the
terms and conditions of this Agreement.
a. Interest in Land. The purchase price of any interest in real property
described in the project application, which may not exceed the fair market value as
established by appraisal.
b. Direct Costs. Costs associated with the Project, including expenses for a
title policy (including endorsements and other title company charges), an appraisal,
outside attorneys' fees, an environmental site assessment, development of a
management plan and baseline documentation, a survey, and reasonable out -of-
pocket travel expenses associated with the Project.
C. Indirect Costs. On transactions involving the pre- acquisition of land for a
government agency by a non - profit organization, normal administrative expenses
(such as, staff time and overhead relating to the Project), which shall not exceed five
percent (5 %) of the purchase price of the Property. These costs shall be documented
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by Grantee and reviewed by and subject to approval of the Board prior to
disbursement.
5. Payment of Grant Upon satisfaction of all provisions of the conditions
precedent to acquisition and disbursement described in Paragraph 3 herein, and only
after fulfilling all title insurance and closing requirements, the Board shall disburse
funds for the Grant.
a. Payment after Closing. If the Grantee acquired any interest in the
Property before the grant award, Grantee shall submit a request for reimbursement to
the Board thirty (30) days after signing this Agreement. Any eligible costs associated
with the transaction, but not accounted for at closing, shall be submitted to the Board
within 180 days of the award date.
b. Payment at Closing. Grantee shall submit a request for reimbursement to
the Board thirty (30) days prior to closing. Any eligible costs associated with the
transaction, but not accounted for at closing, shall be submitted to the Board within
180 days of closing.
6. Stewardship Requirements Grantee agrees to comply with and cause the
Steward to, at a minimum, comply with the obligations of the stewardship policy (the
"Stewardship Policy ") adopted by the Board and attached hereto as Exhibit D.
7. Documentation of Financial Transactions Within sixty days after closing,
Grantee will submit to the Board or its authorized agent a post- disbursement
accounting that includes the information required in the Budget noted in Paragraph
3(d)(2) above and a reconciliation of actual to budgeted expenses. This post -
disbursement accounting shall itemize the sources and uses of funds for the Project
that have been received and expended to date, and where applicable, the anticipated
sources and uses of funds for the remainder of the Project. In addition, Grantee will
submit any other documentation reasonably requested by the Board.
8. Compliance with Regulatory Requirements and Federal and State Mandates
Grantee hereby assumes responsibility for compliance with all regulatory requirements
in all applicable areas, including but not limited to nondiscrimination, worker safety,
local labor preferences, preferred vendor programs, equal employment opportunity,
use of competitive bidding, and other similar requirements. To the extent permitted
by law, Grantee hereby agrees to indemnify, defend and hold harmless the Board from
any cost, expense or liability for any failure to comply with any such applicable
requirements.
9. Nondiscrimination During the performance of this Agreement, Grantee and its
contractors shall not unlawfully discriminate against any employee or applicant for
employment because of race, religion, color, national origin, ancestry, physical
handicap, medical condition, marital status, age or sex, and shall comply with any
other applicable laws prohibiting discrimination. Grantee and its contractors shall
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ensure that the evaluation and treatment of their employees and applicants for
employment are free of such discrimination.
10. Publici!y and Project Information Grantee shall acknowledge Board funding in
all news releases and other publicity issued by Grantee concerning the Project. If any
events are planned in relationship to the Project, the Board shall be acknowledged as
a contributor in the invitation for the event. The Board shall be notified of any such
'events thirty (30) days prior to when they are to occur. Grantee shall cooperate with
the Board in preparing public information pieces, providing slides and photos of the
Project from time to time, and providing access to the Property for publicity purposes
to the extent allowed by the landowner. The Board has the right and must be provided
the opportunity to use information gained from the Project.
11. Si na e. Within thirty (30) days of payment of the Grant or an alternative time
period approved in advance by the Executive Director, the Grantee shall erect visible
signs from the nearest public roadway, or from an alternative location approved by the
Executive Director, noting the Project to the public. Such signage shall be erected
unless the Executive Director grants express written permission not to erect such signs.
The number, design, wording, and placement of signs shall be submitted to the
Executive Director for review and written approval prior to their placement. The Board
will provide reproducible samples of its logo to the Grantee for such signs and requires
they be incorporated into the signs.
12. Liability
a. To the extent permitted by law, Grantee shall indemnify, defend and hold
harmless the Board, its officers, agents and employees from any and all liabilities,
claims, demands, damages or costs (including reasonable attorneys' fees) resulting
from, growing out of, or in any way connected with or incident to this Agreement,
except to the extent caused by the negligence, or willful and wanton conduct of the
Board, its members, officers, agents or employees. Grantee hereby waives any and all
rights to any type of express or implied indemnity or right of contribution from the State
of Colorado, the Board, its members, officers, agents or employees, for any liability
resulting from, growing out of, or in any way connected with or incident to this
Agreement.
b. Notwithstanding any other provision of this Agreement to the contrary, no
term or condition of this Agreement shall be construed or interpreted as a waiver,
either express or implied, of any of the immunities, rights, benefits or protection
provided to the Board under the Colorado Governmental Immunity Act ( "CGIA ") as
amended or as may be amended in the future (including, without limitation, any
amendments to such statute, or under any similar statute which is subsequently
enacted). This provision may apply to the Grantee if the Grantee qualifies for
protection under the Colorado Governmental Immunity Act, C.R.S. §24 -10 -101 et seq.
The Board and Grantee understand and agree that liability for claims for injuries to
persons or property arising out of the negligence of the Board, its members, officials,
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agents and employees is controlled and limited by the provisions of the CGIA. The
parties agree that no provision of this Agreement shall be construed in such a manner
as to reduce the extent to which the CGIA limits the liability of the Board, its members,
officers, agents and employees.
13. Audits and Accounting Records Grantee shall maintain standard financial
accounts, documents, and records relating to the acquisition, use, management,
operation and maintenance of the real property interest. The accounts, documents,
and records related to acquisition of the real property interest shall be retained by
Grantee for five (5) years following the date of disbursement by the Board of the Grant
funds under this Agreement, and shall be subject to examination and audit by the
Board or its designated agent during this period. The accounts, documents and
records related to use, management, operation and maintenance of the real property
interest shall be retained by Grantee for five (5) years following the year to which the
records pertain, and shall be subject to examination and audit of the Board or its
designated agent during this period. All accounts, documents, and records described
in this paragraph shall be kept in accordance with generally accepted accounting
principles.
14. Withdrawal of Board Funding The Board may withdraw its approval of funding
to Grantee and cease funding of the Project if, in the Board's sole discretion, it
determines that conditions have occurred which fundamentally change the
expectations of the parties or which make the grant infeasible or impractical.
15. Grantee's Inabilitv to Complete Project If Grantee determines with reasonable
probability that the Project will not or cannot be completed as reflected in the Project
Application, Grantee will promptly so advise the Board, and cooperate in good faith
with respect to alternative solutions to the problem before any further funds are
disbursed by the Board.
16. Completion Date Grantee shall complete acquisition of the real property
interest no later than June 22, 2000, which is one calendar year after the date of the
Board's approval of the Project (the "Completion Date "). Prior to the Completion Date,
either party may terminate this Agreement for the reasons provided in Paragraph 3
above by providing the other party with written notice.
17. Assignment Grantee may not assign its rights or delegate its obligations under
this Agreement without the express written consent of the Executive Director. Consent
to assign the Grant may be withheld in the sole discretion of the Executive Director.
18. Future Funding The Grant only applies to the purchase of the Property
specifically described in this Agreement. The Board makes no representations
regarding future funding for other properties mentioned or described in the Project
Application.
19. Breach In the event that Grantee breaches any of the terms or conditions of
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this Agreement, the Board shall have the following remedies:
a. Prior to Payment of Grant The Board reserves the right to withdraw
funding and/or terminate this Agreement.
b. After Payment of Grant The Board reserves the right to deem Grantee
ineligible for participation in future Board grants, loans or projects, if Grantee defaults
in its obligations hereunder. In addition to the foregoing, the Board shall be entitled to
pursue any other remedy available at law or in equity.
20. Good Faith Both parties have an obligation of good faith, including the
obligation to make timely communication of information which may reasonably be
believed to be of interest to the other party.
21. Applicable Law Colorado law applies to the interpretation and enforcement of
this Agreement.
22. Status of Grantee. The parties acknowledge that the Board lacks the power and
right to direct the actions of Grantee. Grantee acts in its separate capacity and not as
an officer, employee or agent of the Board or the State of Colorado.
23. Entire Agreement Except as expressly provided herein, this Agreement
constitutes the entire Agreement of the parties. No oral understanding or agreement
not incorporated in this Agreement shall be binding upon the parties. No changes in
this Agreement shall be valid unless made in writing and signed by the parties to this
Agreement.
24. Time is of the Essence Time is of the essence in this Agreement.
25. Survival The terms and provisions of this Agreement shall survive the funding
of the Grant and the acquisition of the real property interest by Grantee. Subsequent to
the funding of the Grant, Grantee shall have a number of ongoing obligations.
26. Fax and Counterparts This Agreement may be executed in one or more
counterparts, each of which shall be an original, but all of which when taken together
shall constitute one Agreement. In addition, the parties agree to recognize signatures
to this Agreement transmitted by telecopy as if they were original signatures.
27. Third Party Beneficiary. The Board and Grantee hereby acknowledge and agree
that this Agreement is intended only to cover the relative rights and obligations
between the Board and Grantee, and that no third party beneficiaries are intended.
28. Construction Each party hereto has reviewed and revised (or requested
revisions of) this Agreement, and therefore, any usual rules of construction requiring
that ambiguities are to be resolved against a particular party shall not be applicable in
the construction and interpretation of this Agreement.
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29. Severability If any provision of this Agreement is declared void or
unenforceable, such provision shall be deemed severed from this Agreement, and the
balance of this Agreement shall otherwise remain in full force and effect.
Dated: �q *
STATE BOARD OF THE GREAT
OUTDOORS COLORADO TRUST FUND
By:
6 Will S roth
ecutive Director
GRANTEE:
, d'' , , , Kw,
Name: Corinne Koehler
Title: President of City Council
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EXHIBIT A
Project Application
EXHIBIT B
Conservation Easement Form
AUG 04 '99 16:20 FR LOCO 303 863 7517 TO 17195430572 P.14i32
Exbiibit B
DEED OF CONSERVATION EASEMENT
NOTICE: THIS PROPERTY HAS BEEN ACQUBM IN PART WIT$ A GRANT
FROM THE STATE BOARD OF THE GREAT OUTDOORS COLORADO TRUST
FUND. THIS DEED CONTAINS RESIViCTIONS ON TEE USE AND
DEVELOPMENT OF THE PROPERTY WHICH ARE INTENDED TO PROTECT
ITS OPEN SPACE VALUES. THE STATE BOARD OF THE GREAT OUTDOORS
COLORADO TRUST FUND HAS FOUND THAT THE ADOPTION OF THESE
DEED RESTRICTIONS IS IN THE PUBLIC INTEREST.
THIS DEED OF CON SEIZVATION EASEMENT is made this \ day of \ 19 \, by \
and \, husband and wife, having an address at \ ( "Grantors"), in favor of \ a [state of
incorporation] nonprofit corporation [qualified to do business in the State of Colorado],
having an address at \ ("Grantee ").
RECITALS:
A. Grantors are the sole owners in fee simple' certain real property in \
County, Colorado, more particularly described in Exhibit A attached hereto and
incorporated by this reference (the "Property ").
B. The Property possesses [e.g., natural, scenic, open space, historical,
educational, and /or recreational] values (collectively, "Conservation Values ") of great
importance to Grantors, the people of [county, locale, or region] and the people of the
State of Colorado_
C. In particular, [describe Specific Conservation Values present on the
Property].
D. The specific Conservation Values of the Property are documented in an
inventory of relevant features of the Property, dated \ [on file at the offices of Grantee or
attached hereto as Exhibit B] and incorporated by this reference ("Baseline
Documentation "), which consists of reports, maps. photographs, and other documentation
that the parties agree provide, collectively, an accurate representation of the Property at the
time of this grant and which is untended to serve as an objective information baseline for
monitoring compliance with the terms of this grant.
E. Grantors intend that the Conservation Values of the Property be preserved
and maintained by the continuation of land use patterns, including, without limitation, those
relating to [e.g., farming, ranch tbmber production] existing at the time of this grant, that
do not significantly impair or interfere with those values.
F. Grantors further intend, as owners of the Property, to convey to Grantee the
right to preserve and protect the Conservation Values of the Property in perpetuity.
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Jaauary 8, 1999 1
AUG 04 '99 16:20 FR GOCO 303 863 7517 TO 17195430572 P.15i32
G. Grantee is a publicly supported, tax - exempt nonprofit organization, qualified
under Sections 501(c)(3) and 170(h) of the Internal Revenue Code, whose primary purpose
is [e.g., the preservation, protection, or enhancement of land in its natural, scenic,
historical, agricultural, forested, and/or open space condition].
H. Grantee agrees by accepting this grant to honor the intentions of Grantors
stated herein and to preserve and protect in perpetuity the Conservation Values of the
Property for the benefit of this generation and the generations to come;
NOW, THEREFORE, in consideration of the above and the mutual• covenants,
terms, conditions, and restrictions contained herein, and pursuant to the laws of the State of
Colorado, and in particular C.R.S. § 38- 30.5 -101 et seq., Grantors hereby voluntarily grant
and convey to Grantee a conservation easement i a perpetuity over the Property of the nature
and character and to the extent hereinafter set forth ( "Easement'D.
1. Purpose It is the purpose of this Easement to assure that the Property will be
retained forever (predominantly] in its le,g., natural, scenic, historic, agricultural,
forested, and/or open space] condition and to prevent any use of the Property that wff
significantly impair or interfere with the Conservation Values of the Property. Grantors
intend that this Easement will confine the use of the Property to such activities, including,
without limitation, those involving [e.g., farming, ranching, timber production, public
recreation, or education] as are consistent with the purpose of this Easement.
2, ldghts of *ra tee To accomplish the purpose of thus Easement the following
rights are conveyed to Grantee by this Easement:
To preserve and protect the Conservation Values of the Property;
b. To enter upon the Property at reasonable times in order to monitor
Grantors' comuliance with and otherwise enforce the terms of this Easement; provided fhat
such entry shall be upon prior reasonable notice to Grantors, and Grantee shall not
unreasonably interfere with Grantors' use and quiet enjoyment of the Property; and
C. To prevent any activity on or use of the Property that is inconsistent
with the purpose of this Easement and to require the restoration of sucli or features of
the Property that may be damaged by any inconsistent activity or use.
3. Prohibited Uses Any activity on or use of the Property inconsistent with the
purpose of this Easement is prohibited. Without limiting the generality of the foregoing, the
following activities and uses are expressly prohibited:
a. Construction of Buildings and Other Stn=res The construction, or
reconstruction of any building or other structure or improvement, except those existing on
the date of this Deed, is prohibited except in accordance with paragraphs (b), (c) and (h)
below.
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b. Fences Grantor may repair or replace existing fences, and new fences
may be built for purposes of reasonable and customary management of livestock and
wildlife, and for separation of ownership and uses.
C. New Structures and mprov menu New buildings and other structures
and improvements may be built with the advance written permission of Grantee. Grantee
shall give such permission within a reasonable time, witless Grantee determines that the
proposed building, structure, or improvement will substantially diminish or impair the
Conservation Values of the Property.
d. Sub-division Any division or subdivision of title to the Property,
whether by physical or legal process, is prohibited.
C. Land'Management The Property shall be operated and managed in
accordance with a land stewardship plant prepared and accepted with the mutual consent of
Grantor and Grantee, which plan shall be updated no less frequently than every five years.
f. Timber Harvesting Trees may be cut to control insects and disease, to
control invasive non - native species, and to prevent personal injury and property damage.
Dead trees may also be cut for firewood and other uses on the Property. Commercial timber
harvesting on the Properly shall be prohibited.
g. Mining The muting or extraction of soil, sand, gravel, rock, oil,
natural gas, fuel, or any other mineral substance is prohibited (limited exceptions may be
made where the impact is minimal].
h. Paving and Road and Trail Construction No portion of the Property
shall be paved or otherwise covered with concrete, asphalt, or any other paving material, nor
shall any road or trail be constructed without the advance written permission of Grantee.
Grantee shall give such permission within a reasonable time, unless Gzantee determines that
the proposed paving or covering of the soil, or the location of any road or tram, will
substantially diminish or impair the Conservation Values of the Property or is otherwise
inconsistent with this Deed, and such permission shall not be unreasonably withheld.
I. Trash. The dumping or uncontained accumulation of any kind of trash
or refuse on the Property is prohibited.
j. Water Rights Grantor shall retain and reserve the right to use water
rights sufficient to maintain and improve the Conservation Values of the Property, and shall
not transfer, encumber, lease, sell or otherwise separate water rights necessary and sufficient
to maintain and improve the Conservation Values of the Property from title to the Property
itself.
k. Commercial or Industrial Activity No commercial or industrial uses
shall be allowed on the Property.
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[insert other restrictions)
4. Reserved Rights Grantors reserve to themselves, and to their personal
representatives, heirs, successors, and assigns, all rights accruing from their ownership of the
Property, including the right to engage in or permit or invite others to engage in all uses of
the Property that are not expressly prohibited herein and axe not inconsistent with the
purpose of this Easement. [~Without limiting the generality of the foregoivag, the
following rights are expressly reserved: insert express reservations, if desiredj
5. Notice of Intention to Undertake Certain Pert fi tted Asadons The purpose of
requiring Grantors to notify Grantee prior to undertaiemg certain permitted activities is to
afford Grantee an opportunity to ensure that the activities in question are designed and
carried out in a manner consistent with the purpose of this Easement. Whenever notice is
required, Grantors shall 'notify Grantee in writing not less than [e.g.,sixty (60)] days prior to
the date Grantors intend to undertake the activity in question. The notice shall describe the
nature, scope, design, location, timetable, and any other material aspect of the proposed
activity in sufficient detail to permit Grantee to make an informed judgment as to its
consistency with the purpose of this Easement.
6. Grantee's Aptyroval. Where Grantee's approval is required Grantee shall grant
or withhold its approval in writing within [e.g., si' ty (60)] days of receipt of Grantors'
written request therefor. Grantee's approval may be withheld only upon a reasonable
determination by Grantee that the action as proposed would be inconsistent with the
purpose of this Easement.
7. Enforcement Grantee shall have the right to prevent and correct or require-
correction of violations of the terms and purposes of this Deed. Grantee may enter the
Property for the purpose of inspecting for violations. If Grantee finds what it believes is a
violation, Grantee shall immediately notify Grantors and the State Board of the Great
Outdoors Colorado Trust Fund ( "the Board ") in writing of the nature of the alleged
violation. Upon receipt of this written. notice, Grantors shall either (a) restore the Property to
its condition prior to the violation or (e) provide a written explanation to Grantee of the
reason why the alieged violation should be permitted. If the condition described in clause (b)
above occurs, both parties agree to me-It as soon as possible to resolve this difference, If a
resolution of this difference cannot be achieved at the meetin_, both parties agree to meet
with a mutually acceptable mediator to attempt to resolve the dispute. When, in Grantee's
opinion, an ongoing or irmnment violation could irreversibly diminish or impair the
Conservation Values of the Property, Grantee:may, at its discretion, take appropriate legal
action. Grantors shall discontinue any activity which could increase or expand the alleged
violation during the mediation process. Should mediation fail to resolve the dispute, Grantee
may, at its discretion, take appropriate legal action. If a court with jurisdiction determines
that a violation is immin ent, exists, or has occurred, Grantee may get an injunction to stop
it:, temporarily or permanently. A court may also issue an injunction to require Grantors to
restore the Property to its condition prior to the violation.
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8. Costs of Enforcement Any costs incurred by Grantee in enforcing the terms
of dais Easement against Grantors, including, without limitation, costs of suit and attorneys'
fees, and any costs of restoration necessitated by Grantors' violation of the terms of this
Easement shall be borne by Grantors. If Grantors prevail in any action to enforce the terms
of this Easement, Grantors' costs of suit, including, without limitation, attorneys' fees, shall
be borne by Grantee.
9. Grantee's Discretion Enforcement of the terms of this Easement shall be at
the discretion of Grantee, and any forbearance by Grantee to exercise its rights under this
Easement in the event of any breach of any term of this Easement by Grantors shall not be
deemed or construed to be a waiver by Grantee of such term or of any subsequent breach of
the same or any other term of this Easement or of any of Grantee's rights under this
Easement_ No delay or omission by Grantee in the exercise of any right or remedy upon any
breach by Grantors shall impair such right or remedy or be construed as a waiver.
10. Waiver of Certain Defenses Grantors hereby waive any defense of lathes,
estoppel, or prescription.
11. Acts Bevond Grantors' Control Nothing cgnramed in this Easement shall be
construed to entitle Grantee to bring any action against Grantors for any injury to or change
in the Property resulting from causes beyond Grantors' control, including, without
limitation, fire, flood, storm, and earth movement, or from any prudent action taken by
Grantors under emergency conditions to prevent, abate, or mitigate significant injury to the
Property resulting from such causes.
12. Access [No right of access by the general public to any portion of the
Property is conveyed by this Easement.] or [The general public shall have the access to
the Property.], as appropriate
13. Costs and Liabilities Grantors retain all responsibilities and shall bear all
costs and liabilities of any kind related to the ownership, operation, upkeep, and
maintenance of the Property, including the maintenance of adequate comprehensive general
liability insurance coverage. Grantors shall keep the Property free of any liens arising out of
any work performed for, materials f u shed to, or obligations incurred by Grantors.
14. Taxes Grantors shall pay before delinquency all taxes, assessments, fees, and
charges of whatever description levied on or assessed against the Property by competent
authority (collectively " taxes "), including any taxes imposed upon, or incurred as a result of,
this Easement, and shall famish Grantee with satisfactory evidence of payment upon
request. [Grantee is authorized but in no event obligated to make or advance any payment
of taxes, upon [e.g., three (3)] days prior written notice to Grantors, in accordance with any
bill, statement, or estimate procured from the appropriate authority, without inquiry into the
validity of the taxes or the accuracy of the bill, statement, or estimate, and the obligation
created by such payment shall bear interest until paid by Grantors at the lesser of /
percentage points over the prime rate of interest from time to time charged by Norw Bank
of Denver or the maximum rate allowed by law.]
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15. Hold Ha ess Grantors shall hold harmless, indemnify, and defend Grantee
and its members, directors, officers, employees, agents, and contractors and the heirs,
personal representatives, successors, and assigns of each of them (collectively "Indemnified
Parties ") from and against all liabilities, penalties, costs, losses, damages, expenses, causes of
action, claims demands, or judgrnents, including, without limitation, reasonable attomeys'
fees, arising from or in any way connected with: (1) injury to or the death of any person, or
physical damage to any property, resulting from any act, omission, condition, or other
matter related to or occur ring on or about the Property, regardless of cause, unless. due solely
to the negligence of any of the Indemnified Parties; (2) the obligations specified in
paragraphs 8 and 8.1; and (3) the presence or release of hazardous or toxic substances on,
under or about the Property. For the purpose of this paragraph, hazardous or toxic
substances shall mean any hazardous or toxic substance which is regulated under any
federal, state or local law.
16. Extingui h_ment If circumstances arise in the future such as render the
purpose of this Easement impossible to accomplish, this Easement can be terminated or
extinguished, whether in whole or in part, by only jirdicial proceedings in a court of
competent jurisdiction. Each party shall promptly notify the other when it first learns of such
circumstances, and shall, in addition, notify the State Board of the Great Outdoors Colorado
Trust Fund of such circumstances. The amount of the proceeds to which Grantee shall be
entitled, after the satisfaction of prior claims, from any sale, exchange, or involuntary
conversion of all or any portion of the Property subsequent to such termination or
extinguishment, shall be determined, unless otherwise provided by Colorado law at the time,
in accordance with paragraph 17 below. In. the event of condemnation or termination, the
Board shall be entitled to receive that portion of the net proceeds of condemnation or sale of
the Property which is equal to a fraction, the numerator of which is the Grant and the
denominator of which is the acquisition price for the Property.
17. Proceeds This Easement constitutes a real property interest immediately
vested in Grantee, which the parties stipulate to have a fair market value determined by
multiplying the fair market value of the Property unencumbered by the Easement (minus
any increase in value after the date of this -ant attributable to improvements) by the ratio of
the value of the Easement at the time of this grant to the value of the Property, without
deduction for the value of the Easement, at the time of this grazit The values at the time of
this grant shall be those values used to calculate the deduction for federal income tax
purposes allowable by reason of this grant, pursuant to Section 170(h) of the Internal
Revenue Code of 1954, as amended. For the purposes of this paragraph, the ratio of the
value of the Easement to the value of the Property unencumbered by the Easement shall
remain constant-
18. Condemnation If the Easement is taken, in whole or in part, by exercise of
the power of eminent domain, Grantee shall be entitled to compensation in accordance with
applicable law. The Board shall be entitled to compensation from Grantee in an amount as
determined in accordance with paragraph 16 above.
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AUG 04 '99 16:24 FR GOCO 303 863 7517 TO 17195430572 P.20i32
19. Assignment This Easement is transferable, but Grantee may assign its rights
and obligations under this Easement only to an organization that is (a) a qualified
organization at the time of transfer under Section 170(h) of the Internal Revenue Code of
1954, as amended (or any successor provision then applicable), and the applicable
regulations promulgated thereunder, (b) authorized to acquire and hold conservation
easements under Colorado law, and (c) approved as a transferee by the State Board of the
Great Outdoors Colorado Trust Fund. As a condition of such transfer, Grantee shall require
that the conservation purposes that this grant is intended to advance continue to be carried
out. The Board shall have the right to require Grantee to assign its rights and obligations
under this Easement to a different organization if Grantee ceases to exist or for any reason
fails or refuses to enforce the terms and provisions of this Easement.
20. Subsequent transfers Grantors agree to incorporate the terms of this
Easement in any deed or other legal instrument by which they divest themselves of any
interest in all or a portion of the Property, including, without limitation, a leasehold interest.
Grantors further agree to give written notice to Grantee of the transfer of any interest at least
[e.g., tweiaty (20)] days prior to the date of such transfer. The failure of Grantors to perforrn
any act required by this paragraph shall not impair the. validity of this Easement or limit its
enforceability in any way. - '
21: Notices Any notice, demand, request, consent, approval, or communication
that either parry desires or is required to give to the other shall be in writing and either served
personally or sent by first class mail, postage prepaid, addressed as follows:
To Grantors:
To Grantee:
To the Board:
Executive Director
State Board of the Great Outdoors Colorado Trust Fund
Suite 900
303 East 17th Avenue
Denver, CO 80203
or to such other address as either party from time to time shall designate by written notice to
the other.
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AUG 04 '99 16:24 FR GOCO 303 863 7517 TO 17195430572 P.21i32
22. Recording Grantee shall record this instrument in timely fashion in the
official records of each county in which the Property is situated, and may re- record it at any
time as may be required to preserve its rights in this Easement.
23. General Provisions
a. C ntrollinz Law The interpretation and performance of this Easement
shall be governed by the.laws of the State of Colorado.
b. Liberal Con truction Any general rule of construction to the contrary
notwithstanding, this Easement shall be liberally construed in favor of the grant to effect the
purpose of this Easement and the policy and purpose of C.R.S. §3 8-30.5 -101 et seq. If any
provision in this instrument is found to be ambiguous, an interpretation consistent with the
purpose of this Easement that would render the provision valid shall be favored over any
interpretation that would render it invalid.
C. Severability If any provision of this Easement, or the application
thereof to any person or circumstance, is found to be iny�id, the remainder of the provisions
of this Easement, or the application of such provision to persons or circumstances other than
those as to which it is found to be invalid, as the case may be, shall not be affected thereby.
d. Entire Amement This instrument sets forth the entire agreement of
the parties with respect to the Easement and supersedes all prior discussions, negotiations,
understandings, or agreements relating to the Easement, all of which are merged herein.
e. fro Forfeiture Nothing contained herein will result in a forfeiture or
reversion of Grantor's title in any respect.
f Joint Obligation The oblations imposed by this Easement upon
Grantors shall be joint and several.
g. Successors The covenants, terms, conditions, and restrictions of this
Easement shall be binding upon, and inure to the benefit of, the parties hereto and their
respective personal representatives, heirs, successors, and assigns and shall continue as a
servitude running in perpetuity with the Property.
h. Termination of i is and Obligations A parry's rights and obligations
under this Easement terminate upon transfer of the party's interest in the Easement or
Property, except that liability for acts or omissions occurring prior to transfer shall survive
transfer.
i. C one. The captions in this instrument have been inserted solely for
convenience of reference and are not a part of this instrument and shall have no effect upon
construction or interpretation.
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AUG 04 '99 16:25 FR GOCO 303 863 7517 TO 17195430572 P.22i32
j. Amendment If the circumstances arise under which an amendment to
or modification of this instrument would be appropriate, Grantor and Grantee are free to
jointly amend this instrument; provided that no amendment shall be allowed that will affect
the qualifications of this instrument under any applicable laws; and provided, further, that
the prior written approval of the Board shall be required. Any amendment must be
consistent with the conservation purposes of this instrument and may not affect its perpetual
duration. Any amendment must be in writing, signed by both parries and the Board, and
recorded in the records of the Clerk and Recorder of the County in which the Property is
located.
k. Termination of the Board In the event that Article XXV11 of the
Colorado Constitution, which established the State Board of the Great Outdoor Colorado
Trust Fund, is amended or repealed to terminate the Board or merge the Board into another
entity, the rights and obligations of the Board hereunder shall be assigned to and assumed by
such other entity as provided by law, but in the absence of such direction, by the Colorado
Department of Natural Resources or its successor.
TO HAVE AND TO HOLD unto Grantee, its successors, and assigns forever.
IN WITNESS WHEREOF Grantors and Grantee have executed this Deed of
Conservation Easement on the day and year first above written.
[signatures]
[acknowledgimentsl
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EXHIBIT C
Due Diligence Checklist
for a Great Outdoors Colorado
Open Space Acquisition Project
AUG 04 1 99 16:25 FR GOCO 303 863 7517 TO 17195430572 P.24i32
Ekb bit C
DUE DMIGENCE C IIECSLLST FOR A
GREAT OUTDOORS COLORADO
GREAT OUTDOORS
OPEN SPACE ACQUY.SMON PROJECT C o L a P A D o
Even if you have completed GOCO open space pmjects before, please review this carefully. Please refer
to yourgrant agreement, its exhibits, the Technical Supplement to 1999 Open Space GrantAwards,
and its attachments to ensure that you comply with all of the terms and conditions ofyour grant.
As described in the Technical Supplement to 1999 Open Space Grant Awards (the
"Technical Supplement "), the following documentation is required to the
disbursement of GOCO's funds for your project. Please refer to the Technical Supplement
for a detailed description of each of these items and their associated requirements.
1. Notification of Closing Date -
2. Signed Grant Agreement
i
3. Resolution of Corporate Authority
4. Option or Purchase Agreement
5. Qualified Appraisal
6. Conservation Restriction
7. Maps
8. Survey
9. Environmental Assessment
10. Title Insurance Commitment
11. Baseline Documentation Report
12. Management Plan
13. Stewardship Plan
14. Final Budget and Settlement Statement
These documents are not required until after the disbursement of GOCO's funds.
Again, please refer to the Technical Supplement for a detailed description of each of these
items and their associated requirements.
1. Post-disbursement Accountin
2. Reports
3. Final Documents
4. Title Insurance Policy
To allow adequate time for resolv{ng any issues that may arise, please submit these documents
at least 45 da@g for to the anticipated closing date to Tanis 9 Program Coordinator. Please
contact herby phone at (303) 863 -7522 or by a -mail at jwhis'nan(a� oco. or if you have any questions.
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19 �r: W
Stewardship Policy
EXHIBIT D
Stewardship Policy
IMMMI P m : t
AUG 04 '99 16:26 FR GOCO 303 963 7517 TO 17195430572 P.26i32
Exhibit D
Great Outdoors Colorado
Stewardship Policy for Land Conserpation ,Projects'
The Great Outdoors Colorado Trust Fund (LOCO) makes grants to non - profit Iand
conservation organizations, municipalities, counties, the Colorado Division of Wildlife, the
Colorado Division of Parks and Outdoor Recreation, special districts with parks and recreation
responsibilities, and other political subdivisions of the state (Grantees) to preserve, protect,
and enhance the state's wildlife, park, trail, and open space heritage.
GOCO funds a variety of preservation techniques including the acquisition of fee title and
conservation easements. It is important that the conservation values of lands purchased in part
with GOCO funds will be preserved and protected in perpetuity for this generation and
generations to come.
To ensure such protection, the GOCO has established a Stewardship Policy for its Land
Conservation projects that sets minimum stewardship standards. Prior to disbursing funds for
land conservation acquisitions, Grantees must demonstrate that land acquired will be
permanently protected and that the conservation values identified in the project application will
be preserved by developing a stewardship plan for the property that meets or exceeds the
provisions of GOCO's stewardship policy.
GOCO's land stewardship policy applies to both fee title and conservation easement purchases.
The following two areas are addressed:
(1) Tools to ensure permanent arotection of the ,land as open space For example,
placement of a conservation easement of a fee title acquisition to ensure that it will
remain as open; space in perpetuity; and
(2) Preservation of the conservation values of the acquisition For example, if the land is
acquired for its natural area/nongame wildlife value, activities such as preparing a
baseline documentation report, a land management plan, and annual monitoring of the
site are important to ensure that the natural area values at the site are maintained or
improved over the years.
GOCO's stewardship policy was developed with the assistance of local government, land trust
and state land management agency representatives. GOCO hopes to emulate the success of
other or,- g anizations throughout the country that have similar stewardship policies and
practices, and have found them to be important to running effective, long -tern land
conservation programs.
' See page 7 for Glossary of Terms
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AUG 04 '99 16:26 FR GOCO 303 863 7517 TO 17195430572 P.27i32
The Board reserves the right to make case by case exceptions to this policy as circumstances
may require. While it is expected that state agencies adhere to the spirit of this policy, special
accommodations may be made to address their particular needs and circumsTances.
I. Open space purchases supported with GOCO funds shall be
permanently protected as open space-
Conservation Restriction: Properties purchased with GOCO funds shall have a
conservation restriction placed on them to ensure permanent protection.
✓ Fee Me Purchases = Conservation Restriction
Lands purchased in fee shall be subject to a conservation restriction to ensure
permanent protection of the land as open space. GOCO's most commonly used -
and preferred form of conservation restriction is a conservation easement places
on the property held by a 501(c)(3) non - profit land conservation organization.
This easement is inferred to as a third•parO conservation easement and
should be consistent with GOCO's sample conservation easement. The
easement addresses: the purpose of the easement, the rights of the grantee,
prohibited uses, enforcement procedures, notice requirements, and other general
provisions. The holder of this type of easement is referred to as the "Steward."
✓ Conservation Easements = Consistency with GOCO's Sample Easement
When a conservation easement is the property interest being acquired, the
easement should meet or exceed the protection provided in GOCO's sample
conservation easement. While GOCO's sample conservation easement is a
starting point, in the end, Grantee's easements may be more comprehensive and
look very different than GOCO's. Certain provisions in the sample
conservation easement may be negotiated in order to address the particular
circumstances of a transaction. Where Grantee has acquired a conservation
easement on a property, they are also referred to as the "Steward" of the
property-
H. Grantees shall submit a stewardship plan for the property acquired
that will preserve the conservation values of the acquisition. The plan
should include, at a minimum, the following elements:
A. Baseline Documentation Report: The baseline documentation report
provides an assessment of the resource values and existing conditions on the
property at the time the property was purchased. In the case of a fee title
acquisition the Grantee, and in the case of a conservation easement acquisition
the Grantee and the landowner, shall acknowledge the existing condition of the
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AUG 04 '99 16:27 FR GOCO 303 863 7517 TO 17195430572 P.2e/32
property. This information is essential to ensure that the property is being
managed consistent with its conservation values. The report should be
submitted either prior to the disbursement of funds or as soon is practicable and
should, at a minimum, include:
Documentation of the current use and condition of the property through narrative
description, photos, maps, or other appropriate means;
Documentation of the property's conservation values as expressed in the project
application such as wetlands, agriculture, wildlifehyildlife habiw. geologic features,
riparian areas, scenic attributes, unique history, archeology, etc. through narrative
description, photos, maps, or other appropriate means;
Color photographs of the sigaificant natural or man -made features of the property;
Maps documenting the acreage and boundaries of. the property to be protected. Maps
should show features such as roads, trails, water courses, wildlife habitat areas, existing
structures on the property, areas of reserved development rights, areas of special land
uses or unique geologic features;
A signed statement of the Grantee (and the land owner in the case of a conservation
easement purchase) that the documentation report provides an accurate representation of
the current use and condition of the property; and the identification and current
condition of the property's conservation values at the time of im acquisition;
Road map and directions to the property.'
In addition, for conservation easement acquisitions, the following information should
be provided:
A. summary of the easement including the purpose of the easement, a list of
restrictions and reserved rights, existing uses of the properly, ownership, .and recording
information;
Property owner information. History of the easement's acquisition and conm= with
the property owners.
B. Management Plan for the Property: The property shall be operated and
managed in accordance with a land management plan prepared by the Grantee
(and in the case of a conservation easement purchase, the landowner). The plan
may be simple or complex depending on the conservation values to be protected
and whether the Gramee holds a conservation easement or fee title to the land.
Whether an organization has established land management plans and procedures
in place will be taken into account when management plants are being reviewed.
The plan should at a minimum address:
n=agemcat objectives to protect the conservation values of the land noting any special
management needs of the property,
tninimixing adverse impacts on adjacent properties, such as weeds or sort erosion, and
taue„frame for _it lexaeIIration of the plan.
While a management plan for the property may not be available at the time
funds are transferred, at a minimum, the Grantee should submit a summary of
how and for what uses the land will be managed and include a time line for
completing the management plan.
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C. Content of Monitoring Reports and Requirement for at Least
Annual Monitoring (for ConservationEasements only): (See C.R.S. 38-41-
119 for a Colorado regulation setting a one Year statute of limitations on
enforcing building restrictions).
Preservation of the conservation values of an easement cam only occur through
regular monitoring of the condition of the property. - Annual monitoring allows
Stewards (holders of the conservation easement) to build relationships with .
landowners, discover potential violations early on, and provide a continuing
record of the property's condition in case a violation occurs and court action is
necessary. in no circumstance should monitoring occur less frequently than
once every twelve months. Reports should include:
project name and log number;
current property owner's name, address and telephone number;
book and page of deed conveying property if the property has sold since the Last
monitoring statement of Visit; i
new or changed uses of the property;
photographs demonstrating the cm&doa of the property;
whether current uses conform to conservation easement;
any observed violations;
any observed adverse impacts on adjacent properties, such as weeds or soil erosion;
monitor's name, signature, address and phone;
date of visit;
method of monitoring visit, Le. aerial, fu-11 site inspection, drive by fnspecdon;
statement of the landowner acknowledg>ag the mc=* orin„ vise if the lmdowne= was
present;
list of dated and signed aerialiground photos, maps, dlust:r- dtions amwhed to the
monitoring report, and a mm showing where on -site photos and ilh:strarons were
taken.
Note: When the resirivred property is sold, Grmtrees should, m soon as possible, irsform new
owners of the restriction on the property curd the monitoring rerndremenrs.
D. Procedure for Review and Approval of Reserved Rights (for
Conservation Easements only): In certain c ircumstan ces a conservation easement
may require that the grantor of the conservation easement notify the Steward
prior to undertaking certain permitted activities. The Steward shall have a
procedure and general time frame by which to respond to these notices in a
consistent and objective manner contained in the conservation easement.
E. Procedure for Easement Enforcement (for Conservation Easements only):
The Steward shall enforce the terms and provisions of the conservation
easement. Both the grantor of the conservation easement and the Steward shall
agree in principal to, and include in the conservation easement, a hierarchy of
dispute resolution options. For example, such a hierarchy might include:
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(1) If the Grantee finds what it believes to be a violation of the conservation easement, they
shall immediately notify the property owner and' LOCO in writing of the nature of the
alleged violation and eacou age the property owner to address the problem.
(2) If fne alleged violation is not corrected or she property owner does not believe there bas
been a violation, the Grantee should meet with the property owner as soon as possible
to resolve the difference.
(3) If the difference can not be resolved, the parties agree to meet with a mediator.
(4) If mediation fads to resolve the dispute, or if the Grantee believes that the ongoing or
imminent violation could irreversibly diminish or impair the conservation values of the
property, the Grantee may take appropriate legal action.
F. Conservation Easement and Land Management Amendment
Policy. The Grantee shall state its policy and procedure for granting
amendments to management plans or conservation easements. if under the
circumstances an amendment would be appropriate, a management plan or
conservation easement may be amended provided that:
(1) the amendment strengthens or is neutral to the conservation purpose of the
acquisition. ,
In addition for conservation easement amendments:
(2) the amendment does not affect the qualifications of the irjamr,,..,r under any applicable
laws ,
(3) parses to the easement anal GOCO have given prior written approval, and
(4) the amendmem is recorded.
G. Stewardship Funds: The stewardship plan shall include a plan for how the
Grantee and /or Steward will cover the costs of implementing the stewardship
plan.
III. General Provisions.
A. Assignment of Conservation Easements: If the holder of .a
conservation easement ceases to exist or for any reason fails or refuse to enforce
the terms and provisions of the conservation easement, GOCO, at its discretion,
shall have the right to (1) attempt to resolve the issue by working with the
parties involved, (2) submit the matter to alternate dispute resolution and/or (3)
petition the court to resolve whether an easement is being properly enforced and
whether and to who the easement should be assigned.
S. Reports and Notice to GOCO: The holder of a conservation easement
(either purchased with GOCO funds or held on a fee title property purchased
with GOCO fiords) shall provide GOCO with an update on the condition of the
conservation values of the property by providing the status of the easement and
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AUG 04 '99 16:29 FR GOCO 303 863 7517 TO 17195430572 P.31i32
summaries of anneal monitoring, once every three to five years as mutually
agreed.
C. Updates to Land Management and Stewardship Funding plans;
Land management and stewardship fund elements of the stewardship plan
should be updated and copies sent to GOCO at least once every five years.
In addition, notice should be provided to GOCO in the following circumstances:
✓ Transfer of the property to a new owner;
✓ Conservation values are significantly impacted by human action of natural
occurrences;
✓ If the property is taken, in whole or in part, through condemnation;
✓ Holder of the conservation easement believes that a violation of the te= of the
conservation easement has occurred; and
If the organization holding the conservation easement ceases to exist or the Grantee
wishes to assign its rights and obligatfons under the conservation easement.
a
Note: Stewardship of Conservation Easements on GOCO- funded acquisitions (Third -
Party Conservation Easements).: A third -party conservation easement is GOCO's
preferred form of conservation restriction on GOCO - funded fee title acquisitions.
Stewardship activities of organizations holding conservation easements on lands
acquired with GOCO fiords by local governments or land conservation organizations
may differ slightly from those of parties holding conservation easements on lands held
by private landowners. In limited ciz cumstari ces on- the - ground monitoring may be able
to occur less frequently. "In place of annual on-site monitoring, the Grantee might
provide annual written/photographic reports on the condition of the property and the
status of implementation of any associated management objectives to the Steward. In
addition, the Grantee would notify the Steward and a site visit would be triggered by
the following:
• the initial acquisitioa;
• amendment of the conservation easement or land management plan;
• upon report or discovery of a potential violation.of the terms of the conservation
easement;
• if the Grantee's organization ceases to exist;
• when certain reserved rights are exercised; and
• other events as determined appropriate by the Third Parry.
Stewardship requirements in these cases may be made by LOCO, the Grantee, and the
Steward on a case -by -case basis.
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Glossary
Terms such as stewardship, land management„ conservation values, etc. may meau different
things to different organizations. For the purposes of GOCO's stewardship policy, the
following definitions apply:
Conservation Easement Stewardship Fund Funds that are set aside to cover monitoring and
enforcement costs of conservation easements.
Conservation Values: The value of the land acquisition as presented in the Grantee's grant
application. Such values may relate to; natural area/nongame wildlife habitat; agricultural land
preservations; community separator; buffer /inholding; etc.
Land Management Plans Plans that are included as a part of the stewardship plan, that
address specific land management issues related to fee title and conservation easement
purchases. Plans may address such items as fencing a property, locating a proposed trail, or
managing for habitat preservation. 1
Steward Entity that has taken on stewardship responsibilities associated with holding a
conservation easement on a property. May be either Grantee where grant is to acquire a
conservation easement or the holder of a Third Party Conservation Easement.
Stewardship Plans Plans that are required to be developed for all GOCO- funded acquisitions
(fee title and conservation easement acquisitions) to protect the conservation values of the
property. The items addressed in stewardship plans for conservation easements will differ
slightly from those addressed in stewardship plans for fee title acquisitions_
Stewardship Policy Guidelines for minimum stewardship activities for GOCO- funded
acquisitions. The term stewardship includes all activities taken to permanently protect the
property as open space and preserve the conservation values of the property. Such activities
may include land management, conservation easement monitoring, placing conservation
easements on fee title purchases, and periodic reports to the GOCO Board.
Third Party Conservation Easement: A conservation easement that is placed on a GOCO-
funded fee title acquisition that is held by a third party. For example, County A purchases fee
title to parcel B. in order to ensure permanent protection of parcel B as open space, County
grants a conservation easement on the property to a 501(c)(3) land trust. The conservation
easement granted is referred to as a third -party conservation easement.
Third Party Holder Holder of a third party conservation easement. Also may be referred to
as Steward.
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