Fill and Sign the Colorado Easement Form

1 DEED OF CONSERVATION EASEMENT THIS DEED OF CONSERVATION EASEMENT is made this day of 20 , by and , husband and wife, having an address at ("Grantors"), in favor of a nonpr ofit 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 of 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. Grantors intend that the Conservation Values of the Prope rty be preserved and maintained by the continuation of land use patterns, including, without limitation, those relating to [e.g., farming, ranch timber production] existing at the time of this grant, that do not significantly impair or interfere with those value s. E. 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. F. Grantee is a publicly supported, tax -exempt nonprofit organization, qualified under S ections 501(c)(3) and 170(h) of the Internal Revenue Code of 1986, as amended, 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 ]. G. Grantee agrees by accepting this Easement 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 and future generations; NOW, THEREFORE, in considerati on 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 con servation easement in perpetuity over the Property of the nature and character and to the extent hereinafter set forth ("Easement"). 2 1. Purpose. It is the purpose of this Easement to assure that the Property will be retained forever [predominantly] in its [e.g., natural, scenic, historic, agricultural, forested, and/or open space] condition and to prevent any use of the Prop erty that will 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. Baseline Documentation Report. The parties acknowled ge that a written report has been prepared, reviewed, and approved by both parties which documents an accurate representation of the Property’s current condition, or that such a report will be prepared, reviewed, and approved by both parties within six mon ths of the date of this Easement (the “Baseline Documentation Report”). A copy of the Baseline Documentation Report is on file with both parties and by this reference made a part hereof. The parties acknowledge that the Baseline Documentation Report is int ended to establish the condition of the Property subject to the Easement as of the date written above, and that both parties have acknowledged in a signed statement, a copy of which is attached hereto as Exhibit B, that the Baseline Documentation Report ac curately represents the condition of the Property at the time of the conveyance. The parties further agree that, in the event a controversy arises with respect to the condition of the Property as of the conveyance date of the Easement, or compliance with o r violation of any term or provision of this Easement, the parties may use the Baseline Documentation Report and any other relevant or material documents, surveys, reports, and other information to assist in resolving a controversy. 3. Rights of Grantee. To accomplish the purpose of this Easement the following rights are conveyed to Grantee by this Easement: a. To preserve and protect the Conservation Values of the Property; b. To enter upon the Property at reasonable times in order to monitor Grantors' co mpliance with and otherwise enforce the terms of this Easement; provided that 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 preve nt any activity on or use of the Property that is inconsistent with the purpose of this Easement and to require the restoration of such areas or features of the Property that may be damaged by any inconsistent activity or use. 4. Land Management. The Pro perty shall be operated and managed in accordance with a land management plan prepared and accepted with the mutual consent of Grantor and Grantee, which plan shall be initially agreed upon within one year of the date of this Easement and shall be updated at least every five years. 5. 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: 3 a. Construction of Buildi ngs and Other Structures. 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 (g) below. b. Fences. The constr uction or reconstruction of any fence, except to repair or replace existing fences, build new fences for purposes of reasonable and customary management of livestock and wildlife, or to build new fences for separation of ownership and uses. c. New Structur es and Improvements. 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, unless Grantee determines that the proposed building, structu re, or improvement will substantially diminish or impair the Conservation Values of the Property. d. Subdivision. Any division or subdivision of title to the Property, whether by physical or legal process, is prohibited. e. 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 Property shall be pr ohibited. f. Mining. The mining 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 ]. g. Paving and Road and Trail Construction. No port ion 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 reasonab le time, unless Grantee determines that the proposed paving or covering of the soil, or the location of any road or trail, 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. h. Trash. The dumping or uncontained accumulation of any kind of trash or refuse on the Property is prohibited. i. Water Rights. Grantor shall retain and reserve the right to use water rights sufficient to ma intain 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. [OR] i. Water Rights. The Property subject to this Easement includes [use the word ‘all’ or specify the acre feet or other amount] water and water rights, ditches and ditch rights, springs and spring rights, reservoir and storage rights, wells and groundwater rights, and other rights in and to the use of water historically used on or otherwise appurtenant to the Property (collectively, the “Water Rights”), including but not limited to those specifically described in Exhibit D attached hereto. Grant or shall not transfer, encumber, sell, lease, or otherwise separate the Water Rights from the Property or change the historic use of the Water Rights absent the prior written consent of and determination by Grantee that such transfer, encumbrance, sale, le ase, or other change will not materially adversely affect the agricultural productivity and Conservation Values of the Property. Grantor shall not alter, impair, modify, or adversely affect any existing ponds, wetlands, stream channels, or other 4 water feat ures currently located on the Property absent the prior written consent from and determination of Grantee that such facilities will not materially adversely affect the agricultural productivity and Conservation Values of the Property. Grantor shall not aba ndon or allow the abandonment of any of the Water Rights, either by action or inaction. j. Motorized Vehicles. Use of snowmobiles, all -terrain vehicles, motorcycles, or other motorized vehicles off of roads or travelways, except for agricultural or propert y- maintenance purposes, is prohibited. k. Commercial or Industrial Activity. No commercial or industrial uses shall be allowed on the Property. l. Signage or Billboards. No commercial signs, billboards, awnings, or advertisements shall be displayed or plac ed on the Property, except for appropriate and customary ranch or pasture identification signs, “for sale” or “for lease” signs alerting the public to the availability of the Property for purchase or lease, “no trespassing” signs, signs regarding the priva te leasing of the Property for hunting, fishing or other low impact recreational uses, and signs informing the public of the status of ownership. No signs shall materially adversely affect the Conservation Values of the Property. [insert other restrictions] 6. 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 are not inconsistent with the purpose of t his Easement. [Without limiting the generality of the foregoing, the following rights are expressly reserved: insert express reservations, if desired] . 7. Notice of Intention to Undertake Certain Permitted Actions. The purpose of requiring Grantors to notify Grantee prio r to undertaking certain permitted activities is to afford Grantee an opportunity to ensure that the activities in question are designed and carried out in a manner consistent with the purpose of this Easement. Whenever notice is required, Grantors shall n otify 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 ma terial 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. 8. Grantee's Approval. Where Grantee's approval is required Grantee shall grant or withhold its approval in writing within [e.g., sixty (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. 9. 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 purpo se of inspecting for violations. If Grantee finds what it believes is a violation, 5 Grantee shall immediately notify Grantors and the Board in writing of the nature of the alleged violation. Upon receipt of this written notice, Grantors shall either (a) res tore the Property to its condition prior to the violation or (b) provide a written explanation to Grantee of the reason why the alleged violation should be permitted. If the condition described in clause (b) above occurs, both parties agree to meet as soon as possible to resolve this difference. If a resolution of this difference cannot be achieved at the meeting, both parties agree to meet with a mutually acceptable mediator to attempt to resolve the dispute. When, in Grantee's opinion, an ongoing or immin ent 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 that could increase or expand the alleged violation during t he 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 imminent, 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. 10. Costs of Enforcement. Any costs incurred by Grantee in enforcing the terms of this Easement against Grantors, including, without limitation, costs of suit and attorneys' fees, and any costs of restoration necessitated by Grantors' violation of the term s 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. 11. Grantee's Discretion. Enforceme nt 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 w aiver 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 s hall impair such right or remedy or be construed as a waiver. 12. Waiver of Certain Defenses. Grantors hereby waive any defense of laches, estoppel, or prescription, including any defenses available under C.R.S. § 38 -41 -119. 13. Acts Beyond Grantors' Con trol. Nothing contained 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, stor m, 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. 14. 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 access to the Property. ], as appropriate 6 15. Costs and Liabilities. Grantors retain all responsibili ties and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the Property, including weed control and eradication and including the maintenance of adequate comprehensive general liability insuran ce coverage. Grantors shall keep the Property free of any liens arising out of any work performed for, materials furnished to, or obligations incurred by Grantors. 16. 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 furnish Grantee with satisfactory evidence of payment u pon 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 or the maximum rate allowed by law.] 17. Hold Harmless. Grantors shall hold harmless, indemnify, and defend Grantee and its members, directors, officers, employees, agents, and contractors and the heirs, personal representatives, successor s, and assigns of each of them (collectively "Indemnified Parties") from and against all liabilities, penalties, costs, losses, damages, expenses, causes of action, claims, demands, or judgments, including, without limitation, reasonable attorneys' fees, a rising from or in any way connected with: (1) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Property, regardless of cause, unle ss due solely to the negligence of any of the Indemnified Parties; (2) the obligations specified in Paragraph 9 herein; and (3) the presence or release of hazardous or toxic substances on, under or about the Property. For the purpose of this paragraph, haz ardous or toxic substances shall mean any hazardous or toxic substance that is regulated under any federal, state or local law. 18. Extinguishment. If circumstances arise in the future such as render the purpose of this Easement impossible to accomplish, this Easement can only be terminated or extinguished, whether in whole or in part, by judicial proceedings in a court of competent jurisdiction. 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 (the “Board”) 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 19 below. In the event of condemnation or termination, the Boa rd 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 7 numerator of which is that portion of the Board’s Grant attributable to the purchase price for the [Easement/Property] and the denominator of which is the full purchase pri ce for the [Easement/Property]. 19. 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 Easement attributable to improvements) by the ratio of the value of the Easement at the time of this Easement to the value of the Property, without deduction for the value of the Easement, at the time of this Easement. The values at the time of this Easement 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 1986, as amended. For the purposes of this paragraph, the ratio of the value of the Easement to the value of the Proper ty unencumbered by the Easement shall remain constant. 20. 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 shal l be entitled to compensation from Grantee in an amount as determined in accordance with paragraph 18 above. 21. 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 1986, as amended (or any successor provision then applicable), and the applicable reg ulations 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 req uire that the conservation purposes that this Easement 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 ceas es to exist or for any reason fails or refuses to enforce the terms and provisions of this Easement. 22. 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 and the Board of the transfer of any interest at least [e.g., twenty (20)] days prior to the date of such transfer. The failure of Grantors to perform any act required by this paragraph shall not impair the validity of this Easement or limit its enforceability in any way. 23. Notices. Any notice, d emand, request, consent, approval, or communication that either party 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 Gran tors: 8 To Grantee: To the Board: or to such other address as either party from time to time shall designate by written notice to the other. 24. 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. 25. General Provisions. a. Controlling Law. The interpretation and performance of this Easement shall be governed by the laws of the State of Colorado. b. Liberal Co nstruction. 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. §38 -30.5 -101 et seq. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the purpose of this Easement that would render the provision valid shall be favored over any interpretation that would render it invalid. c. Severability. If any provision of t his Easement, or the application thereof to any person or circumstance, is found to be invalid, the remainder of the provisions of this Easement, or the application of such provision to persons or circumstances other than those as to which it is found to b e invalid, as the case may be, shall not be affected thereby. d. Entire Agreement. This instrument sets forth the entire agreement of the parties with respect to the Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Easement, all of which are merged herein. e. No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Grantor's title in any respect. f. Joint Obligation. The obligations imposed by this Easement upon Grantors sh all be joint and several. g. Non -Merger. No merger shall be deemed to have occurred hereunder or under any documents executed in the future affecting this Deed of Conservation Easement, unless the parties expressly state that they intend a merger of estate s or interests to occur and the 9 parties have also obtained the prior written consent of the Board approving such merger of estates or interests. h. Successors. The covenants, terms, conditions, and restrictions of this Easement shall be binding upon, and i nure 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. i. Termination of Rights and Obligations. A party's rights a nd 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. j. Captions. The captions in this instrument hav e been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon construction or interpretation. k. 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 parties, and recorded in the records of the Clerk and Recorder of the County in which the Property is located. l. Termination of the Board. In the event that Article XXVII of the Colorado Constitution, which established the State Board of the Great Outdoor Colorado Trust Fund, is amended or rep ealed 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 Departmen t 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] [acknowledgments]