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Home My WebLink AboutC08-401WEST END INDEMNIFICATION AGREEMENT THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made as of the j~ day of~( ~r-~tk ,~~~-~-, 2008, by and between BCP-MIDTOWN INVESTMENTS II, LLC, a Delaware limited liability company ("BCP"), and EAGLE COUNTY, a governmental entity and political subdivision of the State of Colorado (the "County"). RECITALS WHEREAS, BCP is the fee simple owner of the real property legally described on Exhibit A attached hereto and incorporated herein by this reference (the "BCP Property"); WHEREAS, BCP intends to develop the BCP Property into amixed-use project known as "The West End" in accordance with plans submitted to and approved by the County; WHEREAS, the County is the fee simple owner of the real property legally described on Exhibit B attached hereto and incorporated herein by this reference, which property is located immediately to the north of the BCP Property and which property is commonly known as the Eagle River Preserve (the "Eagle River Preserve"); WHEREAS, the County, as Grantee, and the Eagle Valley Land Trust (the "Land Trust"), as Grantor, entered into a Deed of Conservation Easement dated September 13, 2005, and recorded in the real property records of Eagle County, Colorado on September 20, 2005 at Reception No. 929980 (the "Deed"), whereby the County granted certain rights in the Eagle River Preserve to the Land Trust, including, but not limited to, the right to preserve and protect in perpetuity the Conservation Values (as defined in the Deed) of the Eagle River Preserve. A copy of the Deed is attached hereto as Exhibit C; WHEREAS, pursuant to Section 6 of the Deed, except under certain circumstances set forth in the Deed, any reasonable costs incurred by the Land Trust in enforcing the terms of the Deed against the County in any proceeding filed to enforce the terms of the Deed whether by injunction or an award of damages, shall be borne by the County; and WHEREAS, the County has requested that BCP indemnify the County for any Losses (as defined herein) it incurs under Section 6 of the Deed in connection with a violation of law by BCP or a breach by BCP of any written agreement with the County, on the terms and conditions set forth in this Agreement. NOW THEREFORE, for good and valuable consideration, the receipt, adequacy and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Recitals. The above recitals are true and correct in all material respects. 2. Indemnification. BCP, for itself and its successors and assigns, hereby agrees to hold harmless and indemnify the County, its Commissioners, agents and employees, from and against any and all losses, damages, awards, judgments, costs, expenses and other payments including, without limitation, all reasonable legal fees and costs (collectively, "Losses"), which have been paid by the County to the Land Trust pursuant to the terms of Section 6 of the Deed to the extent arising from either (i) a failure of BCP to comply with any law, rule, regulation or ordinance of the County as determined by a court of competent jurisdiction, which determination is final and non-appealable, or a settlement between the County and the Land Trust with the prior written consent of BCP, or (ii) a breach by BCP of any written agreement with the County, after the expiration of any applicable notice and cure period, as determined by a court of competent jurisdiction, which determination is final and non-appealable, or a settlement between the County and the Land Trust with the prior written consent of BCP. In the event that the Deed is amended such that the County incurs greater liability than the County would have incurred under the Deed as it currently exists, BCP shall only be liable for Losses paid by the County to the Land Trust pursuant to Section 6 of the Deed as it currently exists as shown on Exhibit C attached hereto. 3. Notice to BCP; Right to Cure and Intervene. If the County receives notice from the Land Trust of a violation of the Deed that might give rise to an obligation to indemnify by BCP, its successors or assigns, BCP, its successors and assigns, shall have the right, but not the obligation, to (i) cure the violation in the same time periods set forth in Section 6 of the Deed, and (ii) intervene in any court proceedings, arbitration or any other alternative dispute resolution proceeding and defend itself at its own expense. In order to obtain the benefit of this Section, in the event the County receives notice from the Land Trust of any violation, claim or commencement of any action or proceeding under the Deed that might give rise to an obligation to indemnify by BCP, or its successors or assigns, it shall provide written notice thereof (the "Notice") to BCP no later than two (2) days after receipt which notice shall specify, to the extent known, the nature of the violation and the amount or an estimate of the amount of the liability arising therefrom. The County agrees to allow BCP, if it so chooses, to control the defense, disposition, negotiation and settlement of the claim. If a copy of the Notice is not given to BCP by the County, BCP shall be under no obligation to indemnity the County for any Losses. 4. Assi ng ment. BCP may, upon notice to but without the consent of the County, assign some or all of BCP's rights and responsibilities under this Agreement to an owner's association for The West End and/or to subsequent owners of all of part of the BCP Property, who shall assume the same. Once assigned and assumed by the subsequent owners or any owners' association, BCP shall be automatically released and forever discharged with respect to the rights and responsibilities so assigned. This Agreement may not be assigned by the County without the prior written consent of BCP. 5. Amendments to Deed. The County shall promptly notify BCP in writing of any amendments to the Deed. 2 6. Notices. All communications required or permitted to be given under this Agreement shall be in writing, shall be deemed received upon: hand delivery; one (1) day after being deposited with an over night courier; or three (3) days after being deposited in a United States Post Office, registered or certified mail, postage prepaid, return receipt requested, and shall be addressed as follows: If to the County: Eagle County 500 Broadway P. O. Box 850 Eagle, Colorado 81631-0850 Attn: Bryan Treu, County Attorney If to BCP: BCP-Midtown Investments II, LLC 2601 Blake Street, Suite 300 Denver, Colorado 80205 Attn: Manager With a copy to: Jones & Keller, P.C. 4600 South Ulster Street, Suite 880 Denver, Colorado 80237 Attn: Deborah L. Bayles, Esq. Either party may change its address by giving notice to the other in accordance with this Section 6. 7. Miscellaneous. (a) Amendment. No amendment or modification of this Agreement will be valid or binding unless reduced to writing and executed by the parties hereto and their assigns. (b) Adequate Consideration. Both parties agree that the covenants and promises contained herein are good and sufficient consideration for their respective obligations required hereunder. (c) Further Assurances. Each party hereto will from time to time.execute and deliver such further instruments as the other party or its counsel may reasonably request to effectuate the intent of this Agreement. (d) Controllin Law. The parties hereto conditions hereof, and subsequent performance hereunder, the laws of the State of Colorado. expressly agree that the terms and will be construed and controlled by 3 (e) Le, ag 1 Ex enses. If any party takes legal action against the other in order to enforce or interpret the terms of this Agreement, the party in whose favor final judgment is entered will be entitled to recover from the other party any legal expenses incurred in the preparation, prosecution or appeal thereof, including reasonable costs and attorneys' fees to be fixed by the court. (f) Interpretation. Captions and headings used in this Agreement are for convenience of reference only and will not affect the construction of any provision of this Agreement. As used herein, the singular will include the plural, and vice versa; and any gender will be deemed to include the masculine, feminine and neuter gender. Should any term or condition hereof be deemed void or unenforceable, the remaining provisions of this Agreement will remain in full force and effect. Each and every provision of this Agreement has been independently, separately and freely negotiated by the parties as if this Agreement were drafted by all parties hereto. The parties, therefore, waive any statutory or common law presumption which would serve to have this document construed in favor of, or against, either party. (g) Bindin Eg_ffect. The provisions hereof will be binding upon and inure to the benefit of the parties hereto and their successors and permitted assigns. (h) Waiver. No exercise or waiver, in whole or in part, of any right or remedy provided for in this Agreement will operate as a waiver of any other right or remedy, except as otherwise provide herein. No delay on the part of any party in the exercise of any right or remedy will operate as a waiver thereof. (i) Counterparts. This Agreement may be executed in multiple counterparts, which when any, but not necessarily the same, counterpart is executed by all of the parties will constitute the binding agreement of each. (j) Entire Agreement. This Agreement embodies the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreement and understandings, written or oral, formal or informal with respect thereto. (k) Termination. This Agreement shall automatically terminate without any further action required by the parties on the date the Deed is terminated or extinguished. [signature page follows] 4 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. COUNTY: County Commissioners '''~„ COUNTY OF EAGLE, STATE OF COLORADO BY AND THROUGH ITS BOARD OF COUNTY COM IO Byz~ ~ - Title: Chairman ~ ~"1 BCP: BCP-MIDTOWN INVESTMENTS II, LLC, a Delaware limited liability company By: Name: 1~ YrOk- /,J. r A l/~ Title: Manager 5 Exhibit A Legal Description of BCP Property EXHIBIT a 8 Exhibit A Legal Description of the BCP Property THAT REAL PROPERTY LOCATED IN THE EAST HALF OF SECTION 5, TOWNSHIP 5 SOUTH, RANGE 82 WEST OF THE SIXTH PRINCIPAL MERIDIAN, COUNTY OF EAGLE, STATE OF COLORADO. BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE EAST QUARTER CORNER OF SAID SECTION 5 AND CONSIDERING THE NORTH LINE OF THE SOUTHEAST QUARTER OF SAID SECTION 5 TO BEAR SOUTH 89°43'32" EAST WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO; THENCE NORTH 89°43'32" WEST, ALONG THE NORTH LINE OF SAID SOUTHEAST OUARTER OF SECTION 5, A DISTANCE OF 1370.99 FEET TO THE POINT OF BEGINNING; THENCE SOUTH OZ°O1 '41" WEST, A DISTANCE OF 403.75 FEET; THENCE SOUTH 69°56'03" WEST, A DISTANCE OF 163.57 FEET TO A POINT' ON A CURVE ON THE NORTHERLY RIGHT-OF-WAY LINE OF US HIGHWAY 6; THENCE ALONG SAID NORTHERLY RIGHT OF WAY LINE, ALONG THE ARC OF ANON-TANGENT CURVE TO TTY LEFT HAVING A CENTRAL ANGLE OF 11 °39'46", A RADIUS OF 2915.00 FEET, AN ARC LENGTH OF 593.36 FEET, THE CHORD OF WHICH BEARS NORTT-i 59°41'24" WEST TO T'I~ SOUTHEASTERLY CORNER OF THAT PARCEL OF LAND DESCRIBED IN DEED RECORDED IN BOOK 485 AT PAGE 727 IN THE RECORDS OF THE EAGLE COUNTY CLERK AND RECORDER: THENCE NORTH Ol°29'41"EAST, ALONG TT-~ EASTERLY LINE OF SAID PARCEL, A DISTANCE OF 163.96 FEET TO A POINT ON THE NORTH LINE OF SAID SOUTHEAST QUARTER: THINCE CONTINUING NORTH O1°29'41" EAST, ALONG SAID EASTERLY LINE, A DISTANCE OF 20.33 FEET TO THE WESTERLY END OF THE PROPERTY LINE DESCRIBED IN PROPERTY LINE AGREEMENT RECORDED UNDER RECEPTION N0.200606039, IN THE RECORDS OF THE EAGLE COUNTY CLERK AND RECORDER; THENCE ALONG SAID PROPERTY LINE AGREEMENT RECORDED UNDER RECEPTION N0.200606039, THE FOLLOWING FOUR (4) COURSES: 1. SOUTH 87°32'45" EAST, A DISTANCE OF 56.61 FEET; 2. SOUTH 89°09'51" EAST, A DISTANCE OF 97.26 FEET; 3. SOUTH 88° 1733" EAST, A DISTANCE OF 229.33 FEET; 4. SOUTH 87° 16'09" EAST, A DISTANCE OF 87.15 FEET; THENCE SOUTH 87°56'01" EAST, A DISTANCE OF 179.12 FEET; THENCE NORTH 87°2730" EAST, A DISTANCE OF 25.53 FEET; THENCE SOUTH 02°01'41" WEST, A DISTANCE OF 3.40 FEET TO THE POINT OF BEGINNING. PARCEL 2: ANY BENEFITS CREATED BY EASEMENT RECORDED NOVEMBER 12,1996 IN BOOK 711 AT PAGE 177. Exhibit B Legal Description of Eagle River Preserve EXHIBR ~_ AMENDED FINAL PLAT EATON RANCH A Portion of the W I/2 of the NE 1/4 and a portion of the E 1/2 of the NW 1/4, Section 5, T 5 S, R 82 W of the 6th P.M., Eagle County, Colorado Ww• dl men by Mw pY•eentA MN Bruw E Ea(w and 6nnanew - Ealm. 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ENCINEERR7G o~~ l 3x-toss rwxc (sm) x~w v~~E~ ( ' fr V Exhibit C Deed of Conservation Easement EXHIBIT /"~ I 929980 Page: 1 of 22 I ! 09/20/2005 12:13P Taak J Simonton Eaelt, CO 1i4 R 111.00 D 0.00 Any time the Property is transferred by Grantor to any third party, the third party shall pay a transfer fee .5% of the fair market value of the Property to Grantee and notify Grantee pursuant to the requirements of Section I I of this Easement. DEED OF CONSERVATION EASEMENT Eaton Ranch This Deed of Conservation Easement (the "Easement") made as of this day of ~'`~`~ 2(105, by Eagle County, a governmental entity and political subdivision of the State of Colorado, as distinct from the general public, acting by and through its Board of County Commissioners ("BOCC"), having an address of 500 Broadway, Eagle, Colorado, 91631-0850 ("Grantor"), in favor of the EAGLE VALLEY LAND TRUST, a nonprofit Colorado corporation, having an address of P.O. Box 3308, Eagle, CO, 81631 ("Grantee"), (collectively Grantor and Grantee are the "Parties"). The following Exhibits are attached hereto and made a part of this Easement: Exhibit A - Legal Description of Property Exhibit B - Map of Property Exhibit C - Conceptual Plan Exhibit D - Baseline Documentation Report Acknowledgement Exhibit E - Notice of Transfer of Property RECITALS: A. Whereas, Grantor is the sole owner in fee simple of approximately 72 acres of real property in Eagle County, Colorado, more particularly described in Exhibit A and generally depicted on Exhibit B and Exhibit C, all attached hereto and incorporated herein by this reference (the "Property") together with all water rights, mineral rights, and permits appurtenant to and associated with the Property; B. Whereas, the State of Colorado has recognized the importance of private efforts to preserve land in a natural, scenic, historic, agricultural, or open condition, and for wildlife habitat and other uses consistent with the protection of open land having undisturbed or restored environmental quality, by the enactment of Colorado Revised Statutes (C.R.S.) Sections 38-30.5-101 ei seg.; C. Whereas, portions of the Property were used historically for surface mining and extraction of sand and gravel and those portions of the Property currently are being reclaimed from those mining and excavation activities and upon completion of that reclamation will be maintained as scenic open space and used as a passive recreation area for the enjoyment of the public; D. Whereas, the Property is plainly visible to the public from Interstate 70 and when reclamation is complete, the Property as a whole will possess significant scenic open space values (the "Conservation Values"), which Conservation Values are of great importance to Grantor, Grantee, the people of Eagle County, and the people of the State of Colorado, which Conservation Values are worthy of preservation; E. Grantor intends that the Property be maintained as scenic open space and used as a passive recreation area for the enjoyment of the public; P. Whereas, the following local policies and resolutions support the conservation of the Property: The 11~~ ``,, Property and its use are consistent with Eagle County's Master Plan, and its Guidin Policies, as set ~,~ltl g ~,~.,. forth in Resolution 96-01, which reiterates the 1981 Master Plan - "the environmental quality of Eagle County shall be protected" and includes policies to protect wildlife areas; maintain and V~j~C~~'~' enhance water quality and quantity; protect unique land forms; monitor and control air quality; and ~ ~ r tit, ~~X~ 3~~'~ Eagle Valley land Tnist-Eaton Ranch Conservation Easetnent 1 { C ~ ~ ~3l ~~~ require development to be compatible with natural constraints of the land. Further, Resolution 2003- 097 establishes that it is the policy of Eagle County to be dedicated to "preserving wildlife habitat, protecting working farms and ranches, conserving scenic landscapes and vistas, and protecting wetlands and floodplains" within and throughout Eagle County; G. Whereas, the specific Conservation Values, characteristics, uses, status of improvements, and condition of the Property will be documented in an inventory of the Property no later than September 6, 2005, which inventory will be on file at the office of Grantee and incorporated herein by this reference ("Baseline Documentation Report"). The inventory will consist of reports, maps, photographs, and other documentation that the Parties will acknowledge accurately represents the condition of the Property after its reclamation The Baseline Documentation Report is intended to serve as an objective information baseline for monitoring compliance with the terms of this grant and is not intended to preclude the use of other evidence to establish the condition of the Property if there is a controversy over its use; H. Whereas, Grantee is a qualified private organization under the terms of C.R.S. Sections 38-30.5-101, et seg., a "qualified organization" within the meaning of Section 170(h)(3) of the Internal Revenue Code of 1985 as amended (the "Code"}, a "charitable organization" as described in Section 501(c)(3} of the Code, and a "publicly supported organization" as described in Section 170(b)(1){A) of the Code, whose primary purpose is to preserve and protect the natural, scenic, agricultural, historical, and open space resources of Eagle County, including the area in which the Property is located, by assisting landowners who wish to protect their land in perpetuity to preserve and conserve natural areas, environmentally significant land, and working landscapes for ecological, scenic, aesthetic, scientific, charitable and educational purposes; I. Whereas, the Property has been acquired in part with funds from the Vail Valley Foundation, a Colorado nonprofit corporation (the "VVF"); and J. Whereas, Grantor intends to grant this perpetual Deed of Conservation Easement in gross pursuant to C.R.S. Sections 38-30.5- I0l et sey., to Grantee for the purpose of ensuring that the Conservation Values of the Property are preserved, conserved, protected, and maintained in perpetuity. AGREEMENT: NOW, THEREFORE, inconsideration of the above and the mutual covenants, terms, conditions, and restrictions contained herein, and pursuant to C.R.S. Sections 38-30.5-101, et seq., Grantor hereby grants and conveys to Grantee a perpetual conservation easement in gross for the purpose of protecting and preserving the Conservation Values of the Property in perpetuity. 1. Purpose It is the purpose of this Easement to protect and preserve the Conservation Values of the Property that currently exist and are inventoried in the Baseline Documentation Report and that will be created through the reclamation of the Froperty, to assure that the Property will be retained in public ownership forever in its scenic and open space condition, to be used as a passive recreation area f'or the enjoyment of the public, and to prevent any use of the Property that is inconsistent with the preservation and protection of the Conservation Values of the Property, such as subdivision, commercial timber harvest, mineral exploration, development or extraction, construction of athletic fields or facilities, and construction of buildings or improvements, other than those described as permitted herein. It is Grantor's intent to convey this Easement to Grantee to ensure that the Conservation Values of the Property be preserved and protected forever. It is the Parties' intent to prohibit uses of the Property that are not permitted herein and that are not consistent with the preservation and protection of the Conservation Values as determined by Grantee in its sole discretion. Eagle Valley Land Trust-Eaton Ranch Conservation Easement 2 2. Baseline Documentation Report The Parties agree that the Baseline Documentation Report will be prepared by September 6`", 2006, and reviewed, acknowledged, and approved by Grantee and Grantor within one month and no later than October 6~', 2006. A copy of the Baseline Documentation Report will be on file with Grantee after it is acknowledged. Grantor and Grantee shall acknowledge that the Baseline Documentation Report accurately represents the condition of the Property after its reclamation in a signed statement, a sample copy of which is attached here as Exhibit D, which sam~le statement shall be replaced with the executed acknowledgement as Exhibit D no later than October 6 , 2006. Grantor and Grantee shall acknowledge that they have reviewed and approved the Baseline Documentation Report, that it documents the condition of the Property at the time reclamation is complete and reflects any changes to the Conceptual Plan, attached hereto as Exhibit C, and is intended to establish the condition of the Property subject to the Easement as of the date that reclamation of the Property is complete, July 31", 2006 (the "Operative Date"). The Parties agree that Grantor shall pay for all amendments and updates to the Baseline Inventory subsequent to the execution of the acknowledgment. The Parties shall cooperate to execute the signed statement acknowledging that the Baseline Documentation report documents the condition of the Property at the time reclamation is complete, and accurately represents the condition of the Property on the Operative Date. The Parties acknowledge that they each possess copies of a Phase I Environmental Assessment of the Property entitled: "Biological and Ecological Values and Natural and Environmental Hazards, Eaton Property", dated November 2004 (the "Environmental Assessment"), which has been prepared by Greystone Environmental Consultants, inc., and reviewed and approved by Grantor and Grantee. The Parties agree that, in the event a controversy arises with respect to the condition of the Property as of or prior to the Operative Date, or compliance with or violation of any term or provision of this Easement, the Parties shall not be precluded from utilizing all other relevant or material documents, surveys, reports, and other information to determine the condition of the Property as of or prior to the Operative Date, including the Environmental Assessment. 3. Rights of Grantee To accomplish the purpose of this Easement, the following aff-rmative rights, in addition to those rights and remedies set forth in C.R.S. Section 38-30.5-101 et seq., as amended from time to time, are conveyed to Grantee by this Easement: 3.1. To preserve and protect in perpetuity the Conservation Values of the Property; 3.2. To enter upon the Property at any time in order to monitor Grantor's compliance with and otherwise enforce the terms of this Easement against Grantor in accordance with Section 6; 3.3. To prevent or enjoin any activity on or use of the Property by Grantor that is inconsistent with the purpose of this Easement and to enforce to require the restoration of such areas or features of the Property that may be damaged by Grantor's inconsistent activity or use, pursuant to the remedies set forth in Section 6; and 3.4. To place signs on the Property that identify the land as being protected by this Easement 4. Permitted and Prohibited Uses of the Property Any activity on or use of the Property inconsistent with the preservation and protection of the Conservation Values of the Property is prohibited. The following uses and practices, though not an exhaustive recital, are consistent with the Easement as subject to specified qualifications, conditions, and requirements Eagle Valley Land Trust-Eaton Ranch Conservation Easement 3 4.1. Condition and Reclamation of the Property. The Parties agree that the current use of the Property, excluding its reclamation and restoration, is not inconsistent with the preservation and protection of the Conservation Values; however, the Parties agree that reclamation of the Property, including the ongoing importation of fill material to the Property, is essential to restore and enhance its Conservation Values and shall be accomplished in a manner that is not inconsistent with enhancement of the Conservation Values by July 31 ", 2006, or later as mutually agreed to by the Parties. 4.2. Construction of New Buildings and Other Structures. The construction of any building or other structure on the Property is prohibited, except [hat new, minor. unenclosed, improvements such as picnic shelters, yurts, and open-air educational structures, or enclosed improvements, such as restroom facilities may be constructed on the Property without Grantee's consent provided that the cumulative square footage of all the enclosed and unenclosed structures not exceed 5000 square feet of total floor area and that they comply with all applicable laws, ordinances, and regulations. Permitted buildings and other structures are generally depicted on Exhibit C, Conceptual Plan. Grantor may maintain, repair and replace permitted improvements in accordance with the standards set forth in this Section and in a manner and with a result that is not inconsistent with the preservation and protection of the Property's Conservation Values. Grantor shall notify Grantee in writing of any construction and provide Grantee with documentation so that it may update its records to reflect the new improvements. No residential, commercial, industrial, or retail improvements shall be permitted on the Property, including but not limited to: communication facilities, telecommunication facilities, or any other facilities, equipment, or materia! that may be used for telecommunications or to provide such services, including cellular phone signal transmission towers; aircraft facilities or aircraft landing facilities; golf courses; athletic fields; commercial feed lots; meat or poultry processing facilities; waste storage or waste processing facilities; commercial nurseries; sawmills, or lagging facilities; agricultural products retail outlets, and other similar agricultural facilities; restaurants; night clubs; campgrounds; trailer parks motels, hotels, recreational vehicle facilities; commercial swimming pools, gas stations, or retail outlets or facilities for the manufacture or distribution of any product. For the purposes of this Easement, a commercial "feed lot" shall be defined as a permanently constructed confined area or facility within which the land is not grazed or cropped annually, for purposes of engaging in the business of the reception and feeding of livestock for hire. 4.3. Subdivision. Grantor's division, subdivision or de facto division of the Property, physically, or by legal process, including partition, or by any other action (including entering into any lease or other agreement) is strictly prohibited. Grantor shall convey the Property only in its entirety as a single parcel and only to a qualified unit of government or government entity that shall maintain the Property as permanent open space, consistent with Section I 1 herein. 4.4. Utilities, Except pursuant to utility easements in existence prior to the gran[ of this Easement, or pursuant to utility easements created subsequent to the grant of this Easement pursuant to an exercise of eminent domain, no new utility transmission lines shall be constructed or permitted on the Property except as necessary to service structures permitted herein, which utility lines shall be placed underground, unless Grantor and Grantee mutually agree otherwise. 4.5. Recreation. Grantor and Grantee hereby agree that public access to and use of the Property for low- impact recreational uses such as such as bird watching, hiking, and cross-country skiing is permitted solely on the express condition that that Grantor bears sole responsibility to monitor and enforce this Easement against the public for public uses of the Property that are not consistent with the preservation and protection of the Conservation Values and violations of this Easement. Grantor hereby agrees to monitor the public's use of the Property to ensure that the public's use of the Property is not inconsistent with the preservation and protection of the Property's Conservation Values or otherwise in violation of the terms of this Easement. Grantor agrees that it also bears sole responsibility to enforce violations by the public where the public's access and recreational use of the Property is not consistent with the preservation and protection of the Conservation Values or otherwise violates the terms of this Easement. Eagle Valley Land Trust-Eaton Ranch Conservation Easement 4 4.6. Roads and Trails. Grantor shall not construct any permanent roads on the Property except in connection with permitted improvements an the Property and both roads and improvements shall be located on the Conceptual Plan prior to their use. Any road not intended for permanent use on the Property but constructed for a permitted use such as development of permitted improvements and reclamation of the Property pursuant to subsection 4.1 herein shall be reclaimed and restored to its original condition within forty-five (4S) days after its use is discontinued, and in no circumstance shall any non-permanent road remain on the Property unused for mare than forty-five (45) days without either its development into a permanent, permitted road the location of which is depicted on the Conceptual Plan, or its reclamation and restoration to its original condition. Grantor shall have the right to construct, maintain, repair, replace, and improve trails over and across the Property. Permitted roads and trails are generally depicted on the Conceptual Plan. The Parties acknowledge that the actual location of roads and trails constructed on the Property may vary from the Conceptual Plan and that such variance is permitted with amendment to the Conceptual Plan pursuant to Section 10. The combined total amount of paved area of all permanent roads and trails and parking lots on the Property shall not exceed 165,700 square feet. 4.7. Parking Lots. Grantor shall have the right to construct parking lots on the Property to permit vehicular access to the Property provided that the parking lots comply with all applicable laws, regulations, and ordinances, and do not exceed a cumulative total of (i) 40 parking spaces, or (ii) the minimum number of parking spaces to be provided as required by applicable laws for all parking lots combined. Permitted parking lots are generally depicted on the Conceptual Plan. The Parties acknowledge that the actual location and size of parking lots constructed on the Property may vary from the Conceptual Plan and that such variance is permitted with amendment to the Conceptual Plan pursuant to Section 10. The combined total amount of paved area of all permanent roads and trails and parking lots on the Property shall not exceed ] 65,700 square feet. 4,8. Off-Road Vehicles. Grantor shall not use vehicles off of existing roads and travel ways in a manner that may result in erosion or compaction of the soils, detrimental impact on the natural appearance of the land, or interference with vegetation or natural habitats of those animal species occurring on the Property. Grantor's use of off-road vehicles, including but not limited to snowmobiles, all terrain vehicles, or other vehicles shall not disturb or result in the harassment of wildlife. Public use of off-road vehicles such as snowmobiles or all-terrain vehicles is prohibited and Grantor and Grantee agree that Grantor bears sole responsibility to monitor and enforce this Easement against the public for public uses of the Property that are not consistent with the preservation and protection of the Conservation Values and violations of this Easement. Grantor hereby agrees to monitor the public's use of the Property to ensure that the public's use of the Property does not include off-road vehicles and is not inconsistent with the preservation and protection of the Property's Conservation Values or otherwise in violation of the terms of this Easement. Grantor agrees that it also bears sole responsibility to enforce violations by the public where the public's access and use of the Property is not consistent with the preservation and protection of the Conservation Values or otherwise violates the terms of this Easement. 4.9. Mineral Activities. Grantor shall not explore for or extract oil, gas, and other minerals, rock, gravel, or sand found in, on, or under the Property, including, but not limited to, the lease, sale, or other disposition or alienation of the rights to such minerals and materials. 4.10. Billboards and Signs. Grantor shall not construct, maintain, or erect any commercial signs or billboards on the Property. Signage is permitted for administrative, public health and safety, and informational purposes, such as to display and state the name of the owner and Property, that the area is protected by this Easement, and to state the prohibition of any unauthorized entry or use. 4.l 1. Fences. Fences on the Property shall be constructed in accordance with all applicable laws and to permit migration of wildlife across the Property. Fences constructed on the Property shall no[ be inconsistent with the preservation and protection of the Conservation Values of the Property. Eagle Valley Land Trust-Eaton Ranch Conservation Easement 4.12. Hazardous Materials. The storage, dumping, or other disposal of toxic or hazardous materials or of non-compostable refuse on the Property is prohibited. Notwithstanding anything in this Easement to the contrary, this prohibition does not make Grantee an owner of the Property, nor does it permit Grantee to control any use of the Property by Grantor which may result in the storage, dumping or disposal of hazardous or toxic materials; provided, however, that Grantee may bring action to protect the Conservation Values of the Property, as described in this Easement. (This prohibition does not impose liability on Grantee, nor shall Grantee be construed as having liability as a "responsible party" under CERCLA or similar federal or state statutes.) 4.13. Water Resources. Grantor shall retain and reserve all water rights associated with and appurtenant to the Property, and shall not transfer, encumber, lease, sell, or otherwise separate any quantity of water rights from title to the Property itself, except that Grantor reserves the right lease water to Bruce C. Eaton, and Grimshaw-Eaton, LLC in a manner that is not inconsistent with the preservation and protection of the Conservation Values of the Property. Grantor shall retain and reserve the right to supplement, change points of diversion, enlarge or modify its water rights and may develop, use, maintain and improve water resources and facilities on the Frope[ty in a manner that is not inconsistent with the preservation and protection of the Conservation Values of the Property. The pollution of any surface orsub-surface water on the Property is prohibited. 4.14. Timber Harvesting. Grantor is prohibited from commercially harvesting timber on the Property, or cutting trees for any commercial or business purpose, Grantor may remove trees that constitute a hazard to persons, property, and existing roads. Grantor shall notify Grantee, as set forth in Section 5, of any such removal. Grantor shall not cut or disturb any trees or other vegetation within 300 feet of any active raptor nest during the nesting season, or remove any crown trees or overstory vegetation within three hundred (300) feet of any active raptor nest at any time. Notwithstanding the foregoing, diseased trees may be cut down and removed during the non-nesting season to abate insect infestations, unless they contain the raptor nest. 4. I5. Dumping. Grantor shall not dump or otherwise dispose of trash, debris, ashes, sawdust, and other non-compostable refuse on the Property and Grantor's outdoor trash receptacles shall be designed to be wildlife proof. Grantor and Grantee agree that Grantor bears sole responsibility to monitor and enforce this Easement against the public for public uses of the Property that are not consistent with the preservation and protection of the Conservation Values and violations of this Easement, Grantor hereby agrees to monitor the public's use of the Property to ensure that the public's use of the Property does not include dumping or otherwise disposing of trash, debris, ashes, sawdust, and other non-compostable refuse nn the Property and is not inconsistent with the preservation and protection of the Property's Conservation Values or otherwise in violation of the terms of this Easement. Grantor agrees that it also bears sole responsibility to enforce violations by the public where the public's access and use of the Property is not consistent with the preservation and protection of the Conservation Values or otherwise violates the terms of this Easement. 4.16. Noxious Weeds and Non-Native Species. Grantor shall control noxious weeds and non-native species on the Property in a manner consistent with all applicable state laws and regulations. And subject to the following: (i) All control techniques shall be consistent with the labeled instructions of the application materials, constitute the minimum necessary to control or eradicate the weeds, and not be inconsistent with the preservation and protection of the Conservation Values of the Property; {ii} Aerial application of any weed control is prohibited without Grantee's prior written approval; and (iii) Biological (insect) control of weeds that is not inconsistent with the preservation and protection of the Conservation Values of [he Property shall be deemed consistent with the purposes of this Easement. Grantor shall not introduce to the Property any non-native plant or animal species. Eagle Valley Land Trust-Eaton Ranch Conservation Easement () 5. Notice and Approval 5. (.Whenever notice of intention to undertake certain permitted actions is required, Grantor shall notify Grantee in writing not less than forty-five (45) days prior to the date Grantor intends to undertake the activity or use in question. The notice shall describe the nature, scope, design, location, timetable, and any other material aspect of the proposed activity or use in sufficient detail to permit Grantee to make an informed judgment as to its consistency with the preservation and protection of the Conservation Values of the Property. One purpose of requiring Grantor to notify Grantee prior to undertaking certain permitted activities is to afford Grantee an adequate opportunity to review or monitor the proposed activity or use to ensure that it is designed and carried out in a manner that is consistent with the preservation and protection of the Conservation Values of the Property. Where Grantee's approval is required Grantee shall grant or withhold its approval in writing within forty-five (45) days of receipt of Grantor's written request therefore and Grantee's failure to grant or withhold its approval within and no later than forty-five days (45) after receipt of notice shall be deemed approval. Grantee's approval for activities or uses described in subsections 4.6 and Section 6 may be withheld upon Grantee's reasonable determination that the action or use as proposed would be inconsistent with the protection and preservation of the Conservation Values of the Property. 6. Enforcement Grantee shall have the right to prevent and correct or require correction of violations of the terms and purposes of this Easement as provided in Section 3, herein, and pursuant to C.R.S. Section 38-30.5- 10] et seq., as amended from time to time. If Grantee finds what it believes is a violation, Grantee shall immediately notify Grantor in writing of the nature of the alleged violation. Upon receipt of this written notice, Grantor shall either (a) restore 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 in clause (a) above occurs and Grantor fails to cure the violation within twenty (20) days after receipt of notice thereof from Grantee, or under circumstances where the violation cannot reasonably be cured within a twenty (20) day period, fails to begin curing such violation within the twenty (20) day period, or fails to continue diligently to cure such violation until finally cured, Grantee may bring an action at law or in equity in a court of competent jurisdiction, to enforce the terms of this Easement, to enjoin the violation, ex parte as necessary, by temporary or permanent injunction, and to require by specific performance the restoration of the Property to the condition that existed prior to any such injury. 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. Grantor shall discontinue any activity that could increase or expand the alleged violation during the mediation process. The Parties shall share equally the mediation fees. Should mediation fail to resolve the dispute, Grantee may, at its discretion, take appropriate legal action, including equitable and injunctive relief. Notwithstanding the foregoing, when, in Grantee's opinion, an ongoing or imminent violation could irreversibly diminish or impair the Conservation Values of the Property, Grantee may, at its discretion, take any appropriate legal action or pursue equitable and injunctive relief without first waiting for the period provided f'or cure to expire or without first meeting or attempting to mediate the dispute. If a court with jurisdiction determines that a violation is imminent, exists, or has occurred, and could irreversibly diminish or impair the Conservation Values of the Property, Grantee may obtain an injunction to stop it, temporarily or permanently, and obtain any other relief available at law or in equity, including specific performance of the terms of this Easement and recovery of damages for loss of Conservation Values, which damages Grantee shall apply solely to the Property for the cost of undertaking any corrective action related to the Conservation Values or to improve the Property's Conservation Values, or both. Any reasonable costs incurred by Grantee in enforcing the terms of this Easement against Grantor in any proceeding filed to enforce the terms of this Easement whether by injunction or by an award of damages, including, without limitation, costs and expenses of suit and reasonable attorneys' fees and any cost of restoration necessitated by Grantor's violation of the terms of this Easement, shall be borne by Grantor; provided, however, that if Grantor ultimately prevails in a judicial enforcement action, each party shall Eagle Valley Land Trust-Eaton Ranch Conservation Easement 7 bear its awn costs, and if a deciding body determines that Grantee has acted in bad faith in seeking to enforce this Easement or has initiated a frivolous action to enforce this Easement, Grantee shall pay for Grantor's reasonable costs, including without limitation, costs and expenses of suit and reasonable attorneys' fees. Forbearance by Grantee to exercise its rights under this Easement in the event of Grantor's breach of any term of this Easement shall not be deemed or construed to be 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, failure, or omission by Grantee in the exercise of any right, action, or remedy related to Grantor's breach shall impair such right, action, or remedy, or be construed as a waiver of Grantee's rights, claims or interests in pursuing such right, action, or remedy. 7. Responsibilities Related to Ownership of the Property 7. I . Costs and Legal Requirements. Grantor retains all responsibilities and shall bear all costs of any kind related to the ownership, operation, upkeep, and maintenance, of the Property, including weed control and eradication and the maintenance of adequate liability insurance coverage. Grantor remains solely responsible for obtaining any applicable governmental permits and approvals for any construction or other activity or use permitted by this Easement, and all such construction or other activity or use shall be undertaken in accordance with all applicable federal, state, and local laws, regulations, and requirements. Grantor shall keep the Property free of any liens arising out of any work performed for, material furnished to, or obligation incurred by Grantor. 7.2 Taxes. Grantor 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 upon request. 7.3. Representations. Grantor represents that, after reasonable investigation and to the best of its actual knowledge: a) Based solely on its review of the Environmental Assessment, no substance defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or to the environment exists or has been released, generated, treated, stored, used, disposed of, deposited, abandoned, or transported in, on, from, or across the Property; b) Based solely on its review of the Environmental Assessment, there are not now any underground storage tanks located on the Property, whether presently in service or closed, abandoned, or decommissioned, and no underground storage tanks have been removed from the Property in a manner not in compliance with applicable federal, state, and local laws, regulation and requirements; c) Grantor and the Property are in compliance with all federal, state, and local laws, regulations, and requirements applicable to the Property and its use; d) There is no pending or threatened litigation in any way affecting, involving, or relating to the Property; e) No civil or criminal proceedings or investigations have been instigated at any time or are now pending, and no notices, claims, demands, or orders have been received, arising out of any violation or alleged violation of, or failure to comply with, any federal, state, or local law, regulation, or requirement applicable to the Property or its uses, nor do there exist any facts or circumstances that Grantor might reasonably expect to form the basis for any such proceedings, investigations, notices, claim, demands, or orders; and Eagle Valley Land Trust-Eaton Ranch Conservation Basement S f) Grantor warrants that it has good and sufficient title to the Property, that it has good right, full power and lawful authority to grant and convey this Easement, that any mortgages or liens on the Property are and shall remain subordinate to the terms of this Easement and that the Property is free and clear from all former and other grants, bargains, sales, liens, taxes, assessments, encumbrances and restrictions of whatever kind or nature whatsoever that are not subordinate to the terms of this Easement, and Grantor hereby promises to warrant and forever defend the title to the Easement in the quiet and peaceable possession of Grantee, its successors and assigns, against all and every person or persons lawfully claiming the whole or any part thereof. 7.2. Property Control. Nothing in this Easement shall be construed as giving rise to, in the absence of a judicial decree, any right or ability in Grantee to exercise physical or managerial control over the day-to- day operations of the Property, or any of Grantor's activities on the Property, or otherwise to become an operator with respect to the Property within the meaning of The Comprehensive Environmental Response, Compensation, And Liability Act of 1980, as amended ("CERCLA"), and applicable state laws and regulations. If at any time there occurs a release in, on, or about the Property of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or sail, or in any way harmful or threatening to human health or the environment, Grantor agrees to take all steps necessary pursuant to applicable laws and regulations to assure its containment and remediation, including any cleanup that may be required, unless the same was caused by Grantee, in which case Grantee shall be solely responsible therefor. 7.4. Indemnil';cation. Grantor shall indemnify, defend, and hold Grantee, its respective boards, commissions, members, directors, employees, agents and insurers ("Indemnified Parties"} harmless from and against any and all claims arising from Grantor's use of the real property or from the conduct by Grantor of any activity, program or thing that may be permitted or suffered by Grantor in or about the real property, except that neither the Grantor, its Commissioners, agents or employees will be liable under this subsection for any claim, loss, damage, cost, charge or expense arising out of any negligent or intentional act of Grantee. Grantor shall also indemnify, defend and hold Grantee, its respective boards, commissions, employees, agents and insurers harmless from and against any and all claims arising from any breach, failure to comply with law, regulation, or requirement, or default in the performance of any obligation of Grantor to be performed under the provisions of this Easement or arising from any negligence, recklessness, intentional acts or omissions of Grantor or any of its agents and employees-and from any and all costs, attorney Fees, expenses and liabilities incurred in the defense of any such claim or action or proceeding brought on any such claim; provided, however, that nothing contained herein waives or is intended to waive any protections that may be applicable to Grantor under the Governmental Immunity Act, C.R.S. §24-10-1O1 et seq., or any other rights, protections, immunities, defenses or limitations on liability provided by law, and subject to any applicable provisions of the Colorado Constitution and applicable laws. 7.5. Acts Beyond Grantor's Control. Nothing contained in this Basement shall be construed to entitle Grantee to bring action against Grantor for any injury or damage to, or change in the Property resulting from natural causes, acts of God, or natural acts beyond Grantor's control, including without limitation, fire, flood, storm, and earthquakes, or from injury or damage to, or change in the Property resulting from, any prudent and reasonable action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury or damage to the Property resulting from such causes. Grantor and Grantee agree that "acts beyond Grantor's control" shall NOT be construed or defined to include acts by the public or third party trespassers. Eagle Valley land Trust-Eaton Ranch Conservation Easement 9 S. Extinguishment and Condemnation 8. I . Extinguishment. The Parties' voluntary termination or extinguishment of this Easement in whole or in part is prohibited, and amendment of this Easement that would effect or enable the termination or extinguishment of this Easement in whole or in part is prohibited. 8.2. Condemnation. If all or any part of the Property is taken by exercise of the power of eminent domain or acquired by purchase in lieu of condemnation, whether by public, corporate, or other authority, so as to terminate this Easement, in whole or in part, Grantor and Grantee shalt act jointly to recover the full value of the interest in the Property subject to the taking or in-lieu purchase and all direct or incidental damages resulting therefrom; provided however that Grantor, including any and all subsequent governmental entity-owners of the Property, agrees that it is expressly prohibited itself from taking all or any part of this Easement by exercise of the power of eminent domain or by purchase in lieu of candemnation. All expenses reasonably incurred by Grantor and Grantee in connection with any taking or in lieu purchase shall be paid for first out of the amount recovered. Should either a portion of, or the entirety of the Property be taken by eminent domain or purchase in lieu of condemnation to effect termination of the Easement, all proceeds shall be used to effect the conservation, preservation, and protection of other open space property or properties with "open space conservation, preservation, and protection" having the meaning set forth herein as: "preserving wildlife habitat, protecting working farms and ranching, conserving scenic landscapes and vistas, protecting wetlands and floodplains, providing public access points to rivers and streams", with such property or properties to be mutually agreed upon by the Parties and VVF, if it is still inexistence. 9. Assignment Grantee may, with notice to Grantor, assign its rights and obligations under this Easement 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 regulations promulgated thereunder; and (b) authorized to acquire and hold conservation easements under Colorado law. As a condition of such transfer, Grantee shall require the transferee to expressly agree, in writing, to carry out and uphold the conservation purposes of this Easement and otherwise assume all of the obligations and liabilities of Grantee set forth herein or created hereby. After such transfer, Grantee shall have no further obligation or liability under this Easement. If Grantee is unable to transfer the Easement to another organization because it is no longer incorporated or functioning in furtherance of its ariginal mission, a court with jurisdiction shall transfer the Easement to another qualified organization having similar purposes, which organization agrees to assume the responsibilities of Grantee. t0. Amendment If circumstances arise under which an amendment to or modification of this Easement would be appropriate that would not affect its Purpose, definition of its Conservation Values, or its perpetual duration, Grantor and Grantee are free to jointly amend this Easement, provided that no amendment shall be permitted that will confer a private benefit to Grantor or any other individual or entity greater than the benefit to the general public (see IRS Reg. 1.170A-14(h)(3}(i)) or result in private inurement to a Board member, staff, or contract employee of Grantee, Grantor, or the V VF (see IRS Reg. 1.501(c)(3)-1(c}(2)), or affect the quaiifications of this Easement under any applicable laws and the amendment must be consistent with the Purpase of this Easement and may not affect its perpetual duration, permit uses of the Property inconsistent with the preservation and protection of the Conservation Values, permit, enable, or effect division or subdivision of the Property, permit the construction of buildings or structures, or permit changes to the Conceptual Plan that would be inconsistent with the preservation and protection of the Conservation Values of the Property. The Parties acknowledge that the actual location of buildings and other structures constructed on the Property may vary from the Conceptua! Plan and that such variance is permitted with amendment to the Conceptual Plan consistent with this Section to reflect the variance. Eagle Valley Land Trust-Eaton Ranch Conservation Easement 1 G Any amendment or modification proposed by either or both of the Parties that would affect the Purpose of this Easement, definition of its Conservation Values, its perpetual duration, or this Section must be mutually agreed to by the Parties and the VVF, if the VVF is still inexistence, which mutual agreement by VVF shall be deemed given if VVF does not respond within two weeks of its receipt of notice of the proposed amendment. No amendment shalt be permitted that affects, modiftes, or amends this Section i0 or Section 8 of this Easement, the qualification of this Easement, the status of Grantee under any applicable laws, including C.R.S. Section 38-30.5-101, et seq., Section 170(h}, and Section 501(c)(3) of the Code, or any regulations promulgated thereunder, or the perpetual nature of this Easement. Any amendment to this Easement shall be in writing, signed by both Parties, and recorded in the official records of Eagle County, Colorado. Any and all costs, including staff time and attorney fees associated with any and all amendments to this Easement shall be borne by Grantor. 11. Subsequent Transfers Grantor agrees to incorporate the terms of [his Easement by reference 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, any permissible leasehold interest. Grantor further agrees to transfer the Property only in its entirety as a single parceE and only to a qualified unit of government or government entity that shall maintain the Property as permanent open space. Grantor shall give written notice to Grantee of the transfer of any interest at least twenty (20) days prior to the date of such transfer using the form in Exhibit E attached hereto. Any time [he Property or a portion thereof is transferred by Grantor to any third party, that third party shalt pay a transfer fee of one half (1/2) of a percent (1 %) _ {,5% or .005) of the fair market value of the Property to Grantee to be used for monitoring, stewardship, defense, and enforcement of this Easement or other conservation easements that Grantee holds, or for other purposes consistent with Grantee's own mission. The failure of Grantor to perform any act required by this Section shall not impair the validity of this Easement or limit its enforceability in any way. 12. Notices Any notice, demand, 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, return receipt requested, postage prepaid, addressed as follows: GRANTEE: Eagle Valley Land Trust, P.O. Box 3308, Eagle, Colorado, 81631 GRANTOR: Office of the County Attorney, 500 Broadway, Eagle, Colorado, 91631-0850 13. Recordation Grantee shall record this instrument in timely fashion in the official records of Eagle County, Colorado, and may re-record it at any time as may be required to preserve its rights in this Easement. 14. General Provisions 14. I . Controlling Law. The interpretation and performance of this Easement shall be governed by the laws of the State of Colorado. 14.2. Waiver of Certain Defenses. Grantor hereby waives any defense available pursuant to C.R.S. §38-41-119 relating to timing of action and statutes of limitation. 14.3. Liberal Construction. 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 the Easement to protect and preserve the Conservation Values of the Property in perpetuity, and the policy and purpose of Eagle Valley i.and Trust-Eaton Ranch Conservation Easement 1 1 C.R.S. Sections 38-30.5-101 et seg. 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 and ensure continuation of the purposes of the Easement and the preservation and protection of the Conservation Values of the Property shall be favored over any interpretation that would render it invalid. The common law rules of disfavoring restrictions on the use of real property and construing restrictions in favor of the free and unrestricted use of real property shall not apply to interpretations of this Easement or to disputes between the Parties concerning the meaning of particular provisions of this Easement; 14.4. Severability. If any provision of this Easement, or the application thereof to any person or circumstances, is found to be invalid, the remainder of the provisions of this Easement, or the application of such provision to person or circumstances other than those as to which it is found to be invalid, as the case may be, shall not be affected thereby. 14.5. Conflict with the Code. In granting the Easement, Grantor, atax-exempt government entity, has no requirement of or desire for the tax benefits set forth in Section 170(h) of the Code. Accordingly, if any provision of the Code would impair the enforcement of the Easement because such provision conflicts with the terms of the Easement, the terms of the Easement shall control and such provision of the Code shall not impair the enforcement of the Easement. 14.6. 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 agreement relating to the Easement, all of which are merged herein. 14.7. No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Grantor's title in any respect. 14.8. Joint Obligation. The obligations imposed by this Easement upon Grantor shall be joint and several, if applicable. 14.9. Successors. The covenants, terms, conditions, and restriction 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. The terms "Grantor" and "Grantee", wherever used herein, or any pronoun used in place thereof, shall include, respectively, the above-named Grantor and its successors, and assigns, and the above-named Grantee and its successors and assigns, 14.10. Termination of Rights and Obligations. A party's rights and obligations under this Easement terminate upon transfer of the party's interest in the Easement or Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer. 14.11. Captions. The captions in this instrument have been inserted solely for convenience of reference, are not a part of this instrument, and shall have no effect upon construction or interpretation. 14.12. Counterparts. The Parties may execute this instrument in two or more counterparts, which shall, in the aggregate, be signed by both Parties; each counterpart shall bed^emed an original instrument as against any party who has signed it. In [he event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. 14.13. No Merger. Unless the Pazties expressly state that they intend a merger of estates or interests to occur, then no merger shall be deemed to have occurred hereunder or under any documents executed in the future affecting this Deed of Conservation Easement. Eagle Valley [and Trust-Eaton Ranch Conservation Easement I Z 14.14. Development Rights. Grantor hereby grants to Grantee all development rights except as specifically reserved herein, for the limited purpose of ensuring that such rights are forever terminated and extinguished, and may not be used by Grantor, Grantee, the Board, the United States (USDA or NRCS if other funders), or any other party, either on the Property or transferred off of the Property to any other property adjacent or otherwise. Under no circumstances shall the Property be used as a "remainder parcel" or in any other way for the purpose of calculating or giving credits that result in additional density of development, beyond what is allowed in this Easement, on or off of the Property. 14. I5. No Third Party Enforcement. This Easement is enkered into solely by and between Grantor and Grantee, and as such does not create rights or responsibilities for the enforcement of the terms of this Easement in any third parties, including the public. TO HAVE AND TO HOLD unto Grantee, its successors, and assigns forever. IN WITNESS WHEREOF Grantor and Grantee have set their hands on the day and year firs[ above written. [signature pager to follow hereafter] Eagle Valley [and Trust-Eaton Ranch Conservation Easement 13 GRANTOR: STATE OF COLORADO ss. COUNTY OF EAGLE } COUNTY OF EAGLE, a political subdivision of the State of Colorado, by a gh its Board of C t 'ss' s B --' aunty C issioner The foregoing instrument was acknowledged before me this day of ~ ~ , ,2 ~ , 2005, by ~1`P~ `'`. ~y~ o,J in his official capacity as County Commissioner of Eagle County, a political subdivision of the State of Colorado. Witness my hand and official seal. 1i0fi111~0A My co ' es: Imo. ~ ~ ' O Pte,. '~`~~ z: JANtCE K• '. :. SGO~~~L~,;g ~q~ OF ~O~OQ,P y Public Eagle Valley Land Trust-Eaton Ranch Conservation Easement 14 GRANTEE: EAGLE VALLEY LAND TRUST, a Colorado non-profit torpor ' ./ ~ By Cin y o ag irector STATE OF COLORADO ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this ~~ day of_~'~- 200C? , by Cindy Cahagen as Executive Director of Eagle Valley Land Trust, a Colorado non-profit corporation. Witness my hand and official seal. My commission expires: ~~~,'c Notary Public s- NOrAx=~~r N~,r-~~_IC ,~ STATE Or^ Cr~~ , ~.~ Eagle Valley Land Trust-Eaton Ranch Conservation Easement 15 Exhibit A Y: t ~~ ~i-E R~C~ __, - 'SLR Parc _nch, according to the amended plat recorded August 30, 2005 at Reception No. ~"unty of Eagle, State of Colorado. Eagle Valley Land Trust-Eaton Ranch Conservation Easement 16 AMENDED FINAL PLAT EATON RANCH A Portion of the W 1/2 of the NE 1/4 and a portion of the E 1/2 of the NW 1/4, Section 5, T 5 S, R 82 W of the 6th P.M., Eagle County, Colorado 14wr dl mm OY Maw pnap^h Mqt Bfuu E Ealm and Qbntl,er - Eatm. 114 a Cdagdo LNniletl Uabdlly CanwnY btln9 ml^ oma(e) In Iw tlmga matgegw a ga,ndaa of dl Uwl nd DwPaty elWOIM fi FYgla rwnty, Cdalam a..ae.d e. 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Cr h M S isi ~~ yam, Ju/y T2, 20Q5 (w SSS1') LAND SURVEYING NAPPING eu ve ervtees u m a eoz we, Izee cweeus N,t, /xno, uclc tt r APAMINB NQ. FAASOA A/oe NO t REY790N DA 7E BY 1 ~n - zoo rt STRUCTURAL k CML ENGDIEERD7G °aNt (°x01 }xA99NOrcroN (n9) ue-to}6 Exhibit B Maa of Prouerty Eag3e Valley Land Trust-Eaton Ranch Conservation Easement 1~] r ~~U ~ a :~_. , . ;s`~ ~ -; t ~ ; :~N` Exhibit C' Conceptual Plan f.nglc Valley Land Trull-Gatun Ranch Cnnwn•auon Ea+cmenl i Y'y,. ~`' t; t'. U' ,~; .~~ (G . .i _~ v } _~ ~ '-~' ~ ~~ x - /~ 'J DIY , -; ^I. h `~; .~ ~~ .t; ~ _~ ~; _~ ~~ 4 ,1 4 ~"ti `~'1 N rye F,xhibit D Baseline Document Re ort Acknowled ement Cii antor and Grrnlec arl:nuwledge that each hati read the "_ _ _ C'onur vahon Eaumem t3n~elrne Dorurnent.rtion Reprnt." dated _ ___ __, 20^. and that the report accurately rellects the cundihon ut the I'ruper ty udijcc•t ki the hatiemcm as of nc~ date of com~eyanre of the Ea~emcnt. FACILE VALLEY LAND TRUST. ~<Gramm>, a _ _ _ __ a Colnrrdo non-pn,fir rurpmatwn <corporationJpartnenhip, etc> 13y: u~ Date: sy ltt Date: OR FOR INDIVIDUAL: (INDIVIDUAL NAME( FaEle Valley I,,nd 91 u+1-Ealun Ranh ('omen aturo 6ascmenr ] 9 Exhibit E Notice of Transfer of Property To: Eagle Valle} Land Truu ("Grmtee") atom. [insert name of fee owner] ("Grantor") Pursuant to Seclturr Id of the Decd of Conservation (iasement. Grantee is herchy nouficd t,y Grantor of the trunfet of the fee simple interest m the utb~ect Property legally described to Exhibit A attached hereto el lecuve _ _ _ -]insert date of closing] to__ __ [insert name of new Grantor], wfio can he reached at _ ____ ]insert name, Iegal address, phone and fax number] (:RANTOR• Sy' STATE OP COLOkADO ) ss. COUNTY 01~___ ____ ) The lutegoing intih'ument was acknowledged beli>re me this day of _____ , 20(1_, by as o1 - - Witnesv my hand and official seal. My commissu,n exptres. Notary Public Date: Ea~{c Valley I:tnJ Tnret-F,ar,n R.meh Cuntienahun Faxment