The URL can be used to link to this page

Home My WebLink AboutC07-198 MOU Eagle Valley Land TrustMEMORANDUM OF UNDERSTANDING CONCERNING ALLOCATION OF RESPONSIBILITIES UNDER THE CONSERVATION EASEMENT This memorandum of understanding (the "MOU") is entered into on this L day of5u,1't , 2007 by and between the BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EAGLE, STATE OF COLORADO, a body corporate and politic ("The County"), and the EAGLE VALLEY LAND TRUST, a Colorado non-profit corporation ("EVLT"), (collectively the "Co -Holders" or "Co -Grantees"). RECITALS: WHEREAS, the County and EVLT are co -holders and co -grantees of a conservation easement (the "Easement") encumbering the Meadow Creek acreage located in Vail, Colorado, Eagle County (the "Property"); and WHEREAS, the Property is recognized as having conservation values that include open space character, wildlife habitat, and scenic qualities, (the "Conservation Values") which are to be protected by the Easement; and WHEREAS, in accordance with the Easement, the Co -Grantees are vested and charged with all of the rights and responsibilities of the Easement's Grantee, including stewarding and enforcing the terms of the Easement; and WHEREAS, the Co -Grantees wish to clarify their relationship concerning the stewardship and enforcement of the Easement through this MOU, which will be evaluated every five years, and if agreed upon by the parties, will be updated at that time. NOW, THEREFORE, the Eagle Valley Land Trust and Eagle County hereby agree to the following: 1. Purpose. The purpose of this MOU is to clarify the roles of the Co -Holders and to designate certain legal and fiscal responsibilities concerning stewardship of the Easement. This Agreement shall not be construed as reducing or restricting any of the authority or discretion of either Co -Holder pursuant to the terms and conditions to the Easement. Rather, this Agreement is intended to guide the Co -Holders in administrating the oversight and enforcement of the Easement. 2. Respective Roles. The Land Trust shall be the party primarily responsible for stewardship decisions and actions relating to the Easement, including annual visits to the Property, maintenance of baseline information and stewardship files, monitoring of the co -held Easement, and responding to landowner notice and requests for approval under the Easement. The County shall be the party primarily responsible for investigation and enforcement decisions relating to the Easement. 3. Monitoring and Annual Reports Under the terms of this MOU, EVLT shall be responsible for monitoring compliance with the Easement by the owners and occupants of the Property. Representatives of EVLT shall visit and inspect the Property at least once annually, either by personal site visit or by aerial monitoring. EVLT shall provide to the County a report of the monitoring visit within thirty (30) days of visiting and/or inspecting the Property. The County reserves the right to monitor the Property for compliance with the Easement in addition to, or if the Land Trust fails to so monitor, in lieu of EVLT, and shall provide to EVLT a report of the monitoring visit within thirty (30) days of visiting and inspecting the Property. Prior to performing such monitoring activity in lieu of EVLT, the County shall consult with EVLT and reasonably attempt to resolve any monitoring issues it may have with EVLT. 4. Grantor Notice and Approval. EVLT shall have responsibility for responding to Grantor's notification of or requests for action or approval pursuant to the terms of the Easement. EVLT shall receive and review all such requests for approval and notify the County in writing of its response to any notice or request for action or approval that it gives to Grantor within thirty (30) days of such response. The authority delegated to EVLT by the County through this MOU to act on such request shall be as follows: a. With regard to "Class A" approvals described in Exhibit A hereto, EVLT is empowered to act on behalf of County without prior consent of the County. b. With regard to "Class B" approvals, upon the Co -Grantees' receipt of request for approval of the activities or uses described in Class B, EVLT will provide the County correspondence describing the request and EVLT's planned course of action. County will have fifteen (15) days from the date of receipt of the correspondence within which to provide EVLT with any objections, in writing. If no County objection is registered with EVLT within the fifteen (15) day period, EVLT may pursue its intended course of action. A written request by the County for an additional fifteen (15) day period of review will be granted by EVLT, keeping in mind that a response must be provided to Grantor within 45 days of Co -Grantee's receipt of Grantor's request for approval. The fifteen (15) day period may be waived by consent of both Co -Grantees. C. With regard to "Class C" approvals, EVLT will identify a recommended response and EVLT and the County shall mutually agree as to the approval. 5. Notice, Investigation, and Enforcement of Violations. If at any time, including during stewardship or monitoring of the Easement, either of the Co -Grantees discovers or learns of an alleged violation of the Easement, that Co -Grantee shall promptly notify the other Co -Grantee in writing of the alleged violation. The County shall take all reasonable actions it deems necessary to investigate any alleged violation of the Easement and may bring any action it determines necessary to enforce the terms of the Easement and any violation thereof. EVLT will cooperate with the County in any such enforcement action to the extent reasonably necessary to properly effect such action, except if the County is enforcing the Easement against EVLT or EVLT is enforcing the Easement against the County. The County shall provide EVLT written notice of any decision to enforce or not to enforce the Easement, of any enforcement actions taken, and of any resolution to violations or enforcement of the Easement, within thirty (30) days of such decision, enforcement, or resolution. In the event of emergency, either of the Co -Grantees may take such steps as are reasonably necessary to prevent damage to the Property and to enforce the Easement, and shall promptly notify the other Co -Grantee in writing as to the action taken. Consistent with and as required by the Internal Revenue Code Section 170(h) and Treasury Regulation Section 1.170A -14(c), EVLT expressly reserves to itself the right to enforce the terms of the Easement in addition to, or if the County fails to so enforce, in lieu of the County. Prior to performing such enforcement action in lieu of the County, EVLT shall consult with the County and reasonably attempt to resolve any enforcement issues it may have, with the County. 6. Renewal of Agreement. The initial term of this Agreement shall be from June 1, 2007 until June 1, 2008. Because of the perpetual nature of the stewardship responsibilities associated with the Easement, this Agreement shall automatically renew thereafter annually on June 1 st for five (5) succeeding years, unless either party gives notice to the other party of its intention not to renew the Agreement, which notice shall be provided at least sixty (60) days prior to the expiration of the current term. The Co -Grantees agree and acknowledge that the Internal Revenue Code and related Treasury Regulations require annual monitoring and inspection of conservation easements generally and this Easement specifically, and also require enforcement of the terms of conservation easements generally and this Easement specifically. Notwithstanding anything contained herein to the contrary, either Co -Holder may terminate this Agreement, with or without cause, upon sixty (60) days written notice to the other Co -Holder. 7. Executive Session. Nothing in this MOU shall be construed as prohibiting the County or EVLT from conducting any meeting pertaining to this MOU or the Easement in executive session if otherwise permitted under Colorado law. 8. Notices. Any notice required under this Agreement may be personally delivered or mailed in the United States mail, first class postage prepaid to the party to be served at the following addresses: a. Land Trust: Eagle Valley Land Trust Attention: Cindy Cohagen, Executive Director P.O. Box 3308 Eagle, Colorado 81631 Facsimile: (970) 524-0872 b. County: Eagle County Attorneys Office The County Attorney Eagle County, Colorado P.O. Box 850 Eagle, Colorado 81631 Facsimile: (970) 328-8699 Notices personally served shall be deemed served on the date of delivery. If mailed, such notice shall be deemed to be given when deposited in the United States mail, with postage thereon prepaid. If transmitted by teletype, electronic message, facsimile or other wire or wireless communication, such notice shall be deemed to be given when the transmission is completed. 9. Entire Agreement. The parties hereto agree that neither has made or authorized any agreement with respect to the subject matter of this instrument other than expressly set forth herein, and no oral representation, promise, or consideration different from the terms herein contained shall be binding on either party, or its agents or employees hereto. 10. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, and venue for any action arising out of any dispute pertaining to this MOU shall be exclusive in Eagle County, Colorado. 12. Third Party Beneficiary. Nothing herein expressed or implied is intended or should be construed to confer or give to any person or entity other than the County or EVLT and their respective successors and assigns, any right, remedy or claim under or by reason hereof of by reason of any covenant or condition herein contained. Specifically, nothing herein shall be deemed a necessary prerequisite to enforcing any obligations of the land owner subject to the Easement. 13. Severability. If any portion of this Agreement is held invalid or unenforceable for any reason by a court of competent jurisdiction, such portion shall be deemed severable and its invalidity or its unenforceability shall not affect the remaining provisions; such remaining provision shall be fully severable and this Agreement shall be construed and enforced as if such invalid provision had never been inserted into this Agreement. 14. Amendments. This MOU may be amended, modified, changed, or terminated in whole or in part only by written agreement duly authorized and executed by both County and EVLT. This Agreement represents the full and complete understanding of County and EVLT and supersedes any prior agreements, discussions, negotiations, representations or understandings of County and EVLT with respect to the subject matter contained herein. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its ATTEST: c� ar�unty Commissioners Teak J. Simonton, I Jerk to the °O o�`� Menconi, Chairman Board of County Comm* i ners EAGLE VALLEY LAND TRUST, A Colorado non-prgfit corporation Director EXHIBIT A CLASSIFICATION OF APPROVALS Class A Approvals: - Erection of signs - Construction of ponds - Construction permitted by the Easement - Operation of home occupation Class B Approvals: - New roads, utilities, easements - Collection, placement, storage of trash/waste - Timber harvest not permitted by the Easement - Review of management plans - Construction of agricultural structures outside agricultural complex - Any exercise or waiver of subordination Class C Approvals - Subdivision of property - Unanticipated use or activity inconsistent with Conservation Values - Construction/building not permitted by the Easement - Limitation or restriction of public access that would interfere with Conservation Values and would be considered contrary to the public interest - Any approval for an action or a use not expressly described in the Easement