HomeMy WebLinkAboutC16-464 Eagle Valley Land TrustAGREEMENT BETWEEN EAGLE COUNTY AND THE EAGLE VALLEY LAND TRUST RELATED TO THE WALKING MOUNTAINS SCIENCE CENTER CONSERVATION PROJECT eL- THIS AGREEMENT ("Agreement') is made this 13 day of December, 2016, by and between Eagle County, Colorado, a body corporate and politic (hereinafter the "County"), and the Eagle Valley Land Trust, a Colorado non-profit corporation (hereinafter "Trust'). The County and Trust shall together be referred to as the Parties. The following exhibits are attached hereto and are incorporated into this Agreement by reference: Exhibit A - Description of 5.813 Acre Walking Mountains Science Center Property Exhibit B - Map of Walking Mountains Science Center Property identified as Lots 2A and 213 Exhibit C - Map of Avon Northside CE Property RECITALS WHEREAS, in 2002 voters in Eagle County approved Referendum 1H establishing earmarked funding for the purpose of acquiring, maintaining or permanently preserving open space; and WHEREAS, as a result of Referendum 1H, the County has established an Open Space Program which acquires and/or protects open space throughout Eagle County, Colorado; and WHEREAS, Eagle County Resolution No. 2016-064 concerning the Open Space Program, permits the acquisition, maintenance or permanent preservation of open space and associated natural, pastoral wildlife, conservation or public recreation values of lands, conservation easements or other interests in land acquired by the County, alone or in association with other entities; and WHEREAS, Trust is an entity qualified to hold conservation easements and desires to enter into this Agreement and receive funding through the Eagle County Open Space Program so that it may protect, through a perpetual conservation easement, lands that are otherwise at risk for development and such preservation will benefit the citizens of the Town of Avon and Eagle County; and WHEREAS, Walking Mountains is a Colorado non-profit corporation doing business as Walking Mountains Science Center ("WMSC") located in the Town of Avon, Eagle County, Colorado; and WHEREAS, Trust is a Colorado non-profit corporation qualified to hold conservation easements by the state of Colorado; and 1 A P TO FORM Eagle County Attorney's Office By: C 16-464 Eagle Courts Commissioners' Office WHEREAS, WMSC is or will be under contract to purchase land currently owned by Buck Creek Associates, Ltd., consisting of approximately 5.813 acres, that is proximate to its existing campus and which is described on Exhibit A and depicted on Exhibit B (the "WMSC Property"); and WHEREAS, the WMSC Property is comprised of the 2.303 acre "Lot 2A" and the 3.51 acre "Lot 2B", as shown on the attached Exhibit B, WHEREAS, WMSC intends to subdivide the WMSC Property such that Lot 2A shall be reserved for future development by WMSC; and WHEREAS, WMSC will place a conservation easement to be held by Trust ("WMSC CE") on Lot 2B ("WMSC CE Property"); and WHEREAS, the Town of Avon will place a conservation easement to be held by County on certain Town property including approximately 72.7 acres of land lying north and west of the WMSC Property and approximately 24.64 acres of land lying southerly of the WMSC Property all as depicted on Exhibit C (collectively, the "Avon Northside Property"), which conservation easement shall be referred to as the "Avon Northside CE"; and WHEREAS, the County will acquire a public access easement from WMSC to allow the public access to the WMSC CE Property for purposes of recreation consistent with the permitted uses under the WMSC CE (hereinafter the "Public Access Easement"); and WHEREAS, the County desires to contribute funds to Trust to be used for the Project (defined below) subject to the satisfaction of the terms and conditions described herein, all as determined by the County in its sole discretion; and WHEREAS, the County has determined that the granting of the WMSC CE, the Avon Northside CE and the Public Access Easement will result in the protection of nearly 100 acres of land in Eagle County for conservation purposes, including public recreation, protection of open space, scenic vistas and wildlife habitat, and will result in significant public benefit with a value far exceeding the amount of the County's contribution to the Project; and WHEREAS, the WMSC acquisition of the WMSC Property, Trust's acquisition of the WMSC CE and the County's acquisition of the Avon Northside CE, and the grant of the Public Access Easement to the County are collectively referred to herein as the "Project"; and WHEREAS, any Open Space Funds provided to Trust under this Agreement shall be used solely for the Project subject to the terms and conditions set forth herein. AGREEMENT NOW THEREFORE, in consideration of mutual promises and covenants contained in this Agreement, the Parties agree as follows: 1. Incorporation of Recitals. The recitals set forth above are hereby incorporated into the terms of this Agreement. 2. Representations and Warranties. a. Trust is a non-profit corporation organized in accordance with the laws of the State of Colorado and is qualified to hold conservation easements in the state of Colorado. Further, Trust has full and lawful authority to enter into, and comply with the terms of this Agreement. b. Trust, by its signature below, hereby represents and warrants that its governing body has approved the terms and conditions of this Agreement and that the person signing below on behalf of Trust has full authority to do so. 3. Property Interests to be Acquired. a. WMSC will acquire the WMSC Property from Buck Creek Associates, Ltd. b. Trust will acquire a perpetual conservation easement encumbering the WMSC CE Property, the form of which shall be satisfactory to County in its sole discretion prior to funding. c. The County will acquire a perpetual conservation easement encumbering the Avon Northside Property, the form of which shall be satisfactory to the County in its sole discretion prior to funding. d. WMSC shall convey the Public Access Easement to the County. 4. Funding. a. Subject to the terms and conditions set forth in this Agreement, the County, through its Open Space Program agrees to fund an amount not to exceed $1,050,000 ("Funds"). The Funds include up to $50,000 to be reimbursed to Trust for costs related to the acquisition of the WMSC CE. Costs to be paid from Funds so allocated may include but are not limited to expenses related to (a) 3 preparation of the WMSC CE, and any other documents necessary for the Project; (b) water rights due diligence; (c) preparation of the baseline report; (d) preparation of the mineral assessment; (e) environmental analysis; (f) survey. work; (g) stewardship funds; (h) legal defense funds; (i) title commitment and title insurance; 0) closing and recording fees; and (k) legal review. b. Trust shall not materially modify the Project without the prior written approval of County, such approval to be in the County's sole discretion. Any material modification to the Project undertaken without the County's consent may be deemed a breach of this Agreement by the County, entitling the County to all remedies available under this Agreement. If Trust determines with reasonably probability that the Project will not or cannot be completed as reflected herein, Trust shall promptly so advise the Eagle County Open Space Director, and cooperate in good faith to seek a resolution before any Funds are advanced. 5. Trust Efforts. Trust shall complete the Project in a timely fashion, consistent with this Agreement and the County's approvals related to the Project. 6. Completion Date. Trust shall complete the Project no later than December 31, 2017 ("Completion Date"). Trust may request an extension of the Completion Date which may be granted in the County's sole discretion. If Trust determines with reasonable probability that the Project will not or cannot be completed by the Completion Date or any extended completion date, Trust will promptly so advise the Eagle County Open Space Director, and cooperate in good faith to seek a resolution before any Funds or further Funds are advanced. 7. Other Funds or In -Kind Contribution. The Avon Northside CE, which the parties acknowledge as having real, monetary value, will be donated by the Town of Avon to the County as an additional contribution to the Project. 8. Disbursement of Funds. Closing shall occur at the offices of a title company approved by the County (the "Closing"). Subject to the terms and conditions set forth herein, the County shall disburse Funds required for the Project either to the title company, or, in the discretion of the County as a reimbursement to Trust prior to or after Closing. 9. Conditions Precedent for Disbursement of Funds. Disbursement of Funds are contingent upon the following conditions having been satisfied: a. Notwithstanding anything to the contrary herein, the County's contribution of the Funds set forth in paragraph 4 above, are subject to review and approval of the 4 Project by the Open Space Advisory Committee and the Eagle County Board of County Commissioners in a public meeting. Nothing herein shall be deemed pre - approval by the Open Space Advisory Committee or Eagle County Board of County Commissioners. b. Further, any contribution of Funds by the County is subject to its satisfactory due diligence review, as determined by the County in its sole discretion, which may include, but not be limited to, review of purchase agreement, surveys, title commitments, appraisals, environmental inspection reports as approved by the County, mineral remoteness reviews and evaluations of any water rights, if any, associated with the Project. Due diligence review will also include review and approval of the forms of conservation easements, baseline reports, management plans, Public Access Easement, subdivision of the WMSC Property, title insurance policies and any other documents associated with the Project. Trust shall provide such documents, materials or information as the County may reasonably request in the conduct of its due diligence. The results of the County's due diligence review must be satisfactory to the County as determined by the County in its sole discretion. In the event Trust acquires the conservation easements prior to fulfillment of terms and conditions hereof such acquisition is at Trust's sole risk. If the purchase fails to meet the conditions of this Agreement, the County reserves the right to withhold or withdraw its contribution. c. The Parties agree that the County shall be entitled to review and approve the form of all conservation easements in its sole discretion. Trust agrees that in addition to any revisions that may result from the County's review and approval of the conservation easements, the County also requires that the following concepts be included in the WMSC CE: (i) the County shall be entitled to review and approve signage to be located on the WMSC CE Property; (ii) the County shall be entitled to a copy of any report generated in connection with resource management; (iii) the County shall not have any right or ability to exercise physical or managerial control in connection with and shall not be responsible for hazardous materials; (iv) the County shall have no liability in connection with the conservation easement as a result of its role as a funder; (v) the County shall be notified of and will receive copies of documents associated with any violations or enforcement matters occurring under the conservation easement, although the County shall not be required to participate in mediation or enforcement matters; (vi) the County shall receive notice and be required to approve any transfer of the conservation easement by Trust and its successors; (vii) the County shall be entitled to notice, compensation, and a right, but not the obligation, to participate in any condemnation or other proceeding to terminate the conservation easement, in whole or in part; (viii) Trust shall be entitled to compensation in connection with condemnation, termination and extinguishment of the conservation easement; (ix) the County shall receive notice and copies of any submittals for requests for approval from Trust and related approvals or rejections; (x) the County shall be included in the notice provision of the conservation easement; (xi) the County shall be entitled to notice and approval rights in connection with any assignment, merger, modification or amendment of the conservation easement; (xii) the County shall be a third party beneficiary as to those rights specifically granted to it under the conservation easement; (xiii) the County shall be entitled to appropriate hold harmless provisions in the conservation easement; (xiv) the County shall be entitled to notice but shall have no obligation to participate in mediation. d. If all or any portion of the WMSC Property or the WMSC CE Property is condemned through judicial proceedings or in any other manner, the Parties agree that the first $1,000,000 of any of the proceeds paid to WMSC and Trust shall be paid to the County. All such proceeds shall be used in a manner consistent with the conservation purposes of the WMSC CE. e. The County is entitled to review and approve signage to be located on the WMSC CE Property that shall acknowledge participation by the Eagle County Open Space Program. f. Except as otherwise agreed to in advance by the County in accordance with the terms of this Agreement, no material modifications may be made to the Project. Material modifications to the Project to which the County has not agreed to may result in changes to or a reduction or termination of funding. Material modifications may include, but are not necessarily limited to, an increase or a reduction in the total cost of the Project, a change in the size of the conservation easements or change in the uses permitted within the conservation easements. It is the sole responsibility of Trust to inform the County of any such modifications to the Project. The County strongly encourages Trust to contact the County in writing when it becomes aware of or wishes to make any modifications to the Project, however seemingly minor. 10. Payment of Funds Subject to Sufficient Open Space Funds. Payment of the Funds is subject to the County's determination in its sole discretion that it has received and has available sufficient funds in the Open Space Program to fund the Project. Further, funding the Project is subject to the Funds being budgeted and appropriated for the Project by the Board of County Commissioners. Notwithstanding anything to the contrary contained in this Agreement, no payment will be made for any period after December 31st of any calendar year without the written approval in accordance with a budget adopted by the Eagle County Board of County Commissioners in compliance with the provisions of Article 25, Title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. § 29-1-101 et seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). 11. Project Operation and Maintenance. a. Trust shall inspect the WMSC CE Property at least once every calendar year and ensure compliance with the terms of the WMSC CE all in accordance with best practices established by the Land Trust Alliance. Trust shall provide the County with a copy of its annual monitoring reports within thirty (30) days of completing the annual monitoring of the WMSC CE Property. b. The County shall not be liable for any cost of maintenance, management, operation or stewardship related to the WMSC Property or the WMSC CE Property or any enforcement action under the terms of the WMSC CE. c. Within sixty (60) days of reasonable request by the County, Trust shall provide the County with adequate records reflecting the operation and maintenance and stewardship by Trust of the WMSC CE and provide the County with such other information concerning the Project as the County may request. 12. Public Access. The County shall receive the Public Access Easement with terms and conditions satisfactory to the County in its sole discretion. 13. Compliance with Regulatory Requirements and Federal, State and County Mandates. Trust hereby assumes responsibility for Trust's compliance with all regulatory requirements in all applicable areas, including but not limited to nondiscrimination, worker safety, local labor preferences, preferred vendor programs, equal employment opportunity, use of competitive bidding, permits, approvals, and other similar requirements. To the extent permitted by law, Trust will indemnify and hold the County harmless from any liability for any failure by Trust to comply with the applicable requirements. 14. Nondiscrimination. During the performance of this Agreement, Trust and its contractors, subcontractors and agents shall not unlawfully discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, physical handicap, medical condition, marital status, age or sex, or any other basis prohibited by local, state or federal law. Trust and its contractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination. Further, during the performance of this Agreement, Trust and anyone acting on behalf of Trust shall not engage in any unlawful discrimination in permitting access and use of the Project. 15. Publicity and Project Information. a. County or Trust may erect and maintain a sign at a prominent location on the WMSC Property acknowledging the assistance of the Eagle County Open Space Program and Eagle County and the role of Trust. The County will provide reproducible samples of its logo to Trust for such signs if erected by Trust. b. The County will approve in advance the design and location of any permanent sign. c. Trust will acknowledge funding through the County Open Space Program in all publicity issued by it concerning the Project. The Parties further agree to coordinate and agree in advance as to the form and content of any publicity with the Town of Avon and WMSC. d. Trust shall cooperate with the County, Town of Avon and WMSC in advance in preparing public information pieces related to the Project. e. Trust will give the County the right and opportunity to use information gained from the Project. f. Trust will give the County a minimum of 30 days' notice of Project dedications or other events. g. At no time shall Trust represent in any manner to the public that it is affiliated with the County or acting on behalf of the County. 16. Liabilily. a. Trust shall be responsible for, and to the extent permitted by law, indemnify, defend and hold harmless the County, its officers, agents and employees from any and all liabilities, claims, demands, damages or costs (including reasonable legal fees) resulting from, growing out of, or in any way connected with or incident to Trust's performance of this Agreement. Trust hereby waives any and E3 all rights to any type of express or implied indemnity or right of contribution from the County, the Eagle County Board of County Commissioners, the Eagle County Open Space Program, their officers, agents or employees, from any liability resulting from, growing out of, or in any way connected with or incident to this Agreement. Trust acknowledges that Trust is or will be the holder of the WMSC CE and that the County neither possesses nor controls the operations thereunder. b. Anything else in this Agreement to the contrary notwithstanding, no term or condition of this Agreement shall be construed or interpreted as a waiver, either express or implied, of any of the immunities, rights, benefits or protection provided to the County under the Colorado Governmental Immunity Act as amended or as may be amended in the future (including, without limitation, any amendments to such statute, or under any similar statute which is subsequently enacted). 17. Audits and Accounting. Trust shall maintain standard financial accounts, documents, and records relating to the use, management and operation of the Project. The accounts, documents, and records relating to the Project shall be retained by Trust for not less than seven (7) years following the date of disbursement of Funds under this Agreement. The County, or its designated agent, shall have the right, upon reasonable notice to Trust, to audit the books and records of Trust which pertain to the Project and to the use and disposition of the Funds. Trust shall use reasonable and appropriate accounting systems in maintaining the required records hereunder. 18. Inspection. The County shall have the right to inspect the Project to ascertain compliance with this Agreement. 19. Withdrawal of Funding; Termination of Agreement. Anything else in this Agreement or otherwise to the contrary, notwithstanding, the County may withdraw, in whole or in part, the Funds and/or terminate this Agreement, and/or seek a refund of payments already made if the County determines in its discretion that: a. Facts have arisen or situations have occurred that fundamentally alter the expectations of the Parties or make the purposes for which the Funds were provided infeasible or impractical; b. Any material modifications in the scope or nature of the Project have occurred from that which was presented to the County at the time the funding request was made and such material modifications have not received the prior written approval of the County; 9 c. Any statement or representation made in a presentation to Eagle County Open Space Advisory Committee or Eagle County Board of County Commissioners is untrue, inaccurate or incomplete in any material respect; d. The Project will not or cannot be completed by the Completion Date or any extensions granted thereto or delays in the implementation of the Project have occurred which, in the County's judgment make the Project impracticable; e. The Project cannot or will not be completed with the Funds provided or any approved modifications; f. Conditions precedent to funding have not been fulfilled or are unsatisfactory as determined by the County in its sole discretion; g. Sufficient funds from the Open Space Program are not available to fund the Project. 20. Breach. In the event Trust breaches any of the terms, covenants, representations or conditions of this Agreement, the County may elect to enforce any and all remedies available at law or in equity, including without limitation any of the following: a. Prior to payment of the Funds: i. Withdraw and terminate this Agreement; and ii. Deny Trust eligibility from participation in future Eagle County Open Space projects and funds. b. After payment (full or partial) of Funds: i. Deny Trust eligibility from participation in future Eagle County Open Space projects and funds; ii. Seek specific performance of Trust's obligations under this Agreement; iii. Receive reimbursement in full of Funds disbursed hereunder. c. The foregoing remedies are cumulative and may be exercised independently or in combination and are not exclusive to one another or to any other remedies available at law or in equity. 10 21. Assigm ent. Trust may not assign its rights under this Agreement without the consent of the County, which consent shall be in the sole discretion of the County. 22. Miscellaneous Provisions. a. If any part, term, or provision of this Agreement is held by a court of competent jurisdiction to be illegal or in conflict with any federal law or law of the State of Colorado, the validity of the remaining portions or provisions shall not be affected, and the rights and obligations of the Parties hereto shall be construed and enforced as if the Agreement did not contain the particular part, term or provision held to be invalid. b. Nothing in this Agreement is intended to create or grant to any third party or person any right or claim for damages or the right to bring or maintain any action at law. c. This Agreement is intended as the complete integration of all understandings between the Parties and constitutes the entire agreement between the Parties hereto. d. This Agreement may be changed or modified by written agreement of the Parties. e. Any notices or other communications required or permitted to be given hereunder shall be given in writing and delivered personally, by U.S. mail, or by electronic mail to the attention of the individuals below, or to such other addresses as either party designates by written notice. Notice shall be deemed given on the date of personal delivery or electronic mailing, or five (5) days from the date of mailing by U.S. mail. Notice to Eagle County: Toby Sprunk, Open Space Director P.O. Box 850 500 Broadway Eagle, CO 81361 Toby. sprunkkeaglecounty.us with a copy to: Eagle County Attorney's Office P.O. Box 850 500 Broadway Eagle, CO 81361 #atty@eaglecounty.us 11 Notice to Trust: Jim Daus, Executive Director Eagle Valley Land Trust P.O. Box 3016 Edwards, CO 81631 jdaus a,evlt.org f. Although Eagle County may fund a portion of the Project as described in this Agreement, nothing in this Agreement shall be construed to mean that any land use approvals required as a condition of Closing or later desired by the owner of the Property have been given approval by Eagle County in its governmental capacity. Owner of the Property or Trust, as applicable, shall be solely responsible for obtaining all approvals necessary for Closing or the lawful use of the Property. Nothing herein shall be considered pre -approval by Eagle County of the same. g. Any provisions of this Agreement which require observance or performance after the date of Closing on the WMSC CE shall continue in force and effect following the date of Closing. h. This Agreement shall be governed by the laws of the State of Colorado and venue for any dispute hereunder shall lie exclusively in the Eagle County District Court. i. Nothing in this Agreement shall be construed to create a joint venture, partnership, employer/employee relationship between the Parties hereto other than independent contracting parties. j. Each party hereto has reviewed this Agreement and any usual rules of construction requiring that ambiguities are to be resolved against a particular party shall not be applicable in the construction and interpretation of this Agreement. k. The failure of either parry to enforce a term hereof shall not be deemed a waiver of such term or right of enforcement as to that breach or any subsequent breach of the same, similar or different nature. No waiver shall be enforceable unless signed by the party against whom the waiver is sought to be enforced. 1. A memorandum of this Agreement shall be recorded in the real estate records of Eagle County, Colorado. 23. Prohibitions on Government Contracts. As used in this paragraph 23, the term undocumented individual will refer to those individuals from foreign countries not legally within the United States as set forth in C.R.S. § 8-17.5-101, et. seq. If Trust has any 12 employees or subcontractors, Trust shall comply with C.R.S. § 8-17.5-101, et. seq., and this Agreement. By execution of this Agreement, Trust certifies that it does not knowingly employ or contract with an undocumented individual who will perform under this Agreement and that Trust will participate in the E -verify Program or other Department of Labor and Employment program ("Department Program") in order to confirm the eligibility of all employees who are newly hired for employment to perform under this Agreement. a. Trust shall not: i. Knowingly employ or contract with an undocumented individual to perform under this Agreement; or ii. Enter into a subcontract that fails to certify to Trust that the subcontractor shall not knowingly employ or contract with an undocumented individual to perform work under the public contract. b. Trust has confirmed the employment eligibility of all employees who are newly hired for employment to perform under this Agreement through participation in the E - Verify Program or Department Program, as administered by the United States Department of Homeland Security. Information on applying for the E -verify program can be found at: hqp://www.dhs.gov/xpreyprot�/rograms/gc 1185221678150.shtm C. Trust shall not use either the E -verify program or other Department Program procedures to undertake pre-employment screening of job applicants while the public contract is being performed. d. If Trust obtains actual knowledge that a subcontractor performing work under the public contract knowingly employs or contracts with an undocumented individual, Contractor shall be required to: i. Notify the subcontractor and the County within three (3) days that Trust has actual knowledge that the subcontractor is employing or contracting with an undocumented individual; and ii. Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to subparagraph (i) of the paragraph (d) the subcontractor does not stop employing or contracting with the undocumented individual; 13 except that Trust shall not terminate the contract with the subcontractor if during such three (3) days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an undocumented individual. e. Trust shall comply with any reasonable request by the Department of Labor and Employment made in the course of an investigation that the department is undertaking pursuant to its authority established in C.R.S. 8-17.5-102(5). f. If Trust violates these prohibitions, County may terminate the Agreement for breach of contract. If the Agreement is so terminated specifically for breach of this provision of this Agreement, Contractor shall be liable for actual and consequential damages to the County as required by law. g. The County will notify the Colorado Secretary of State if Trust violates this provision of this Agreement and the County terminates the Agreement for such breach. [remainder of page intentionally left blank] 14 IN WITNESS WHEREOF, this Agreement is executed and entered into the day and year first above written. EAGLE VALLEY LAND TRUST, a Colora n -p fit corporation By: J0 Daus, Executive Director STATE OF COLORADO ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this 12�day of December, 2016, by Jim Daus, Executive Director of Eagle Valley Land Trust, a Colorado non-profit corporation. Witness my hand and official seal. My commission expires: CLAIRE WILSON NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20154049241 MY COMMISSION EXPIRES 12/2912019 Notary COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONERS r J f, e McQueeney, a'r Attest: * 1 By: ?.V • �' Aoo Regina O'Brien, Clerk to the Board 15 Exhibit A (Legal Description of WMSC Property) Lots 2A and 2B, Final Plat, Buck Creek Subdivision, Filing No. 3, County of Eagle, State of Colorado 4 IDCA26J03 40 Zi -f ATII )(il" WCKMFIM Of YRAT0,A 16 Exhibit B Map of WMSC Property 17 � ( A! Exhibit C (Map of Avon Northside Property) w