HomeMy WebLinkAboutC17-227 Town of Gypsum and Rocky Mountain Sports Riders LeaseDRY LAKE MOTOCROSS PARK LEASE
THIS DRY LAKE MJOCROSS PARK LEASE ("Lease") is made as of this
13t& day o �Cy , 2017, by and between the Town of Gypsum, Colorado
("Gypsum"), a home rule municipal corporation organized pursuant to Article XX of the
Colorado Constitution and Gypsum's Home Rule Charter effective October 21, 1982, and
the Rocky Mountain Sport Riders, Inc., a Colorado Nonprofit Corporation ("Lessee"),
(Gypsum and Lessee being singularly referred to as "Party" and jointly referred to as
"Parties").
RECTfALS
WHEREAS, Gypsum owns certain real property within the County of Eagle,
State of Colorado, known generally as the Dry Lake Parcel and more particularly
described on Exhibit A, attached hereto and incorporated herein (`Property"), which was
purchased through a partnership between Gypsum and Eagle County Open Space; and
WHEREAS, approximately 157 acres of the Property, as further described in
Exhibit B, attached hereto and incorporated herein (the "Premises"), is encumbered by a
restrictive covenant held by Eagle County, attached hereto as Exhibit C and incorporated
herein (the "Restrictive Covenant"); and
WHEREAS, the remainder of the Property is encumbered by a Conservation
Easement held by Eagle County (the "Conservation Property"); and
WHEREAS, Eagle County and Gypsum have developed a Management Plan,
attached hereto as Exhibit D and incorporated herein, to manage the multiple uses of the
Premises; and
WHEREAS, Gypsum desires to lease the Premises to Lessee for the purpose of
erecting, operating and maintaining a public motorized track and related recreational
facilities; and
WHEREAS, Gypsum has determined that the lease of the Premises to the Lessee
pursuant to this Lease will be in the best interests of Gypsum and its residents and
visitors; and
WHEREAS, the lease of tl}e Premises shall be made for a term, and pursuant to
the covenants, terms, conditions, and other stipulations set forth in this Lease.
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C17-227
WHEREAS, while not a party to this Lease, pursuant to the terms of the
Restrictive Covenant, Eagle County is entitled to review and approve the form of any
lease or other agreement, and any amendment thereto, between any group that may enter
into an agreement with Gypsum for use and management of all or a portion of the
Premises;
NOW THEREFORE, in consideration of the terms and conditions of this Lease,
the sufficiency of which is mutually acknowledged, the Parties agree as follows:
Section 1. Lease.
1.1 Demise. Subject to the terms of this Lease, the Restrictive Covenant and
the Management Plan, Gypsum hereby leases to the Lessee the Premises with all of the
rights, privileges, easements, appurtenances and restrictions thereunto attached and any
way thereunto belonging.
1.2 Term. The initial term of this Lease shall commence on the date this Lease
is fully executed and shall end on December 31, 2027 (the "Term"), unless sooner
terminated as otherwise set forth in this Lease. Within three (3) months prior to the
termination date, the Parties shall discuss the terms for extending the lease of the
Premises to Lessee. Upon the termination date, the Lessee and Gypsum may agree in
writing to extend the Term of this Lease for additional five (5) year terms, subject to the
reasonable approval of Eagle County. The Parties agree and acknowledge that by this
Lease, Gypsum does not intend to create, and shall not be deemed to have created, a
multiple -fiscal year direct or indirect debt or other financial obligation of any nature, and
that any of Gypsum's obligations hereunder are subject to the annual appropriation of
funds by the Gypsum Town Council in its sole discretion.
Section 2. Consideration.
2.1 In consideration of the lease of the Premises, Lessee shall construct and
maintain such Improvements (as defined herein), maintain the Premises, and make the
Premises available for public use pursuant to the terms and conditions set forth in this
Lease.
Section 3. Relationship.
3.1 It is expressly understood and agreed that this Lease is not intended and
shall not be construed to create the relationship of agent, servant, employee, partnership,
joint venture, or association between Gypsum and Lessee or its employees, volunteers,
members, or agents, but rather an agreement by and between independent contractors.
3.2 It is expressly agreed and understood by Gypsum and Lessee that the
employees, volunteers, members, or agents of Lessee shall not be considered employees
of Gypsum for any purpose under this Lease.
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Section 4. Construction of and Title to Improvements.
4.1 General. Lessee shall construct adult and youth motocross tracks, an access
driveway, parking lot(s), a portable restroom, gated entryway, and signage upon the
Premises (together with any modifications, repairs, replacements, or alterations thereto,
the "Improvements"). The Improvements shall be constructed prior to opening of the
Premises to the public. Lessee shall be solely responsible for building, maintaining and
operating the Improvements consistent with the requirements of this Lease, the
Restrictive Covenant and the Management Plan. Lessee shall not construct, install, alter,
modify or add to any additional improvements without Gypsum's prior written consent.
All Improvements shall be done in a good and workmanlike manner and shall comply
with all applicable laws, regulations and requirements of governmental departments
having jurisdiction and any enforceable restrictions relating to the setback or character of
the Improvements on the Premises. All Improvements shall be located wholly within the
perimeter of the Premises and will comply with the restrictions and requirements
contained in the Restrictive Covenant (Exhibit B) and the Management Plan (Exhibit D).
4.2 Motocross Tracks. The motocross tracks and access driveway alignment
shall be as generally depicted on Exhibit E, attached hereto an incorporated herein. The
motorized track portion of the Premises will be closed to motorized recreational use from
September 30th to May 1 of each year to prevent injury to wildlife or wildlife habitat.
Other seasonal closures may be implemented if required by Gypsum in its sole discretion.
4.3 Restroom. Lessee shall install at least one (1) portable toilet on the
Premises before it is open to the public, which may be removed at the end of each
motorized recreation season. If public use of the Premises becomes significant, Gypsum
may require Lessee to construct one (1) or more permanent vault toilet systems on the
Premises. Restrooms will be maintained in a clean and sanitary condition for use by the
public.
4.4 Signage. Lessee shall install regulatory, directional and interpretive
signage which must be professionally developed and strategically posted to encourage
safe, appropriate and courteous use of the Premises. Signage shall be installed prior to
opening of the Premises to the public.
4.5 Existing Improvements. Currently on the Premises there exists the
following structures and improvements: five storage buildings and a shade shelter (the
`Existing Improvements"). Lessee may use the Existing Improvements for equipment
storage and other uses permitted by the Restrictive Covenant and Management Plan.
4.6 Water. Lessee may use the existing well on the Premises for maintenance
of the motocross tracks and dust suppression. Lessee understands and agrees that the well
water is not potable, and Gypsum will not provide potable water to the Property. Unless
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a potable source of water is made available by Lessee, Lessee agrees to notify public
users that there is no potable water on the Premises.
4.7 Prerequisite. Lessee's right to construct, install, alter, modify or add to any
Improvements shall be subject, in addition to Gypsum's prior written consent, to the
following:
a. Prior to commencing any construction, Lessee shall provide all
relevant plans, permits, and specifications to Gypsum for its review and approval,
which consent shall not be unreasonably withheld by Gypsum. Lessee shall be
solely responsible for obtaining from Eagle County any grading permits required
pursuant to the applicable Eagle County Land Use Regulations, as may be
amended from time to time, for work that involves the movement of soil.
b. Lessee shall procure and maintain such liability and casualty
insurance as provided in Section 6 and any payment and performance bonds or
other financial security as Gypsum may reasonably require in connection with
such work.
C. Lessee shall promptly pay and discharge all costs, expenses,
damages and other liabilities which may arise in connection with or by reason of
such work.
d. Lessee shall undertake such other actions and execute such
documents as Gypsum deems necessary, in its reasonable discretion, to protect
Gypsum's interests in the Premises and Improvements.
4.8 Title to Improvements. Upon construction or installation, title to the
Improvements, the Existing Improvements, and other improvements placed or erected
upon the Premises by Lessee (hereinafter collectively the "Improvements") shall vest
exclusively in Gypsum. Upon expiration of the Term or earlier termination of the Lease
for any reason, Gypsum shall retain the Improvements and title to the Improvements.
4.9 Improvements Financing. In the event Lessee obtains third party financing
for the Improvements, Gypsum acknowledges and agrees that Lessee may pledge as
collateral to its lender the Improvements and Lessee's leasehold rights under this Lease to
secure its repayment obligations to the lender. Such lender's rights shall be subordinate
to Gypsum's ownership of the Premises and rights under this Lease.
Section 5. Maintenance.
5.1 Maintenance. Lessee shall, throughout the Term of this Lease, at no
expense whatsoever to Gypsum or Eagle County, take good care or cause good care to be
taken of the Premises and Improvements and shall promptly make or cause to be made all
repairs, interior or exterior, structural or non-structural, ordinary as well as extraordinary,
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foreseen as well as unforeseen, necessary to keep the Premises and Improvements in
good and lawful order and condition. Gypsum and Eagle County reserve the right to
inspect the Premises and Improvements thereon at reasonable times during the Term of
this Lease. When used in this paragraph, the term "repairs" shall include reasonable
replacement, restoration or renewals when necessary. Neither Gypsum nor Eagle County
shall be required to make any expenditure whatsoever for the maintenance or repair of the
Premises or Improvements, except as otherwise indicated in this Lease unless such
expenditure is caused by the willful or wanton acts or omissions of Gypsum, Eagle
County, or their respective employees, agents, or representatives.
5.2 Noxious Weeds. Lessee will take steps to control or reduce noxious weeds
through chemical, biological, or mechanical control methods. Prescribed fire is also an
acceptable weed management strategy if approval in advance by Gypsum and the
Gypsum Fire Protection District.
Section 6. Insurance, Destruction and Condemnation.
6.1 Insurance. Lessee shall, at all times during the Term, keep the
Improvements insured against loss or damage by fire, and such other risks as may be
included in the standard form of "all risks of physical loss" insurance from time to time
available, in amounts sufficient to prevent Gypsum or Lessee from becoming a coinsurer
within the terms of the applicable policies, and in any event, in an amount not less than
one hundred percent (100%) of the then fall replacement value of the Improvements,
calculated yearly. During the period of any construction or reconstruction of the
Improvements, insurance of the character described in this subsection shall be affected by
Lessee or Lessee's contractor under a builder's risk policy with an all risk endorsement.
6.2 Liability Insurance. Lessee further agrees throughout the Term of this
Lease it will maintain (i) public liability insurance in an amount of not less than
$1,000,000 per person and $2,000,000 per occurrence, or such greater amount as may be
provided in the Colorado Governmental Immunity Act, §24-10-101, C.R.S., et seq.,
against claims of any and all persons, firms and corporations for personal injury, death or
property damage occurring upon, in or about the Premises or Improvements; and (ii)
appropriate workmen's compensation insurance; provided, however, that nothing
contained in this Lease shall be deemed to constitute a waiver of Gypsum's rights under
the Colorado Governmental Immunity Act, §24-10-101, C.R.S., et seq., or an
acknowledgement that Gypsum may be liable to any injured person under a premises
liability theory.
6.3 Rating - Certification - Additional Insured. All policies for such insurance
as provided for in this Section 6 shall be obtained by Lessee from a responsible carrier or
carriers authorized to do business in the State of Colorado, with a Best's rating of not less
than B. Policies or certificates evidencing such insurance coverage shall be delivered by
Lessee to Gypsum upon the execution of this Lease, and certificates evidencing renewal
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of such insurance shall be delivered to Gypsum at least ten (10) days prior to the
expiration of any policy of such insurance. Any such policies shall contain an agreement
by the insurers not to cancel or reduce such policies or alter their respective coverages
except upon at least ten (10) days' prior written notice to Gypsum. Gypsum and Eagle
County shall be named as additional insureds in all such policies and receive satisfactory
certificates of such insurance.
6.4 Destruction. If the Improvements or any part thereof shall be damaged or
destroyed by fire or any other casualty whatsoever, Lessee may terminate this Lease or
restore the Improvements or such part thereof or shall cause the same to be restored in
accordance with the plans and specifications for the original Improvements subject to
changes acceptable to Gypsum. Such reconstruction shall be paid for by Lessee who may
use funds received from the insurance of the Premises, of which shall be paid to the
Lessee, in the event of a fire or any other casualty, prior to the distribution of funds to any
other insured Party of the Premises. If Lessee, at its sole option, chooses to reconstruct
the Improvements, Lessee shall submit plans for reconstruction and repair of the
Improvements within one hundred and twenty (120) days after the occurrence of any
such casualty and shall commence the repair and reconstruction within thirty (30) days
after Gypsum has approved, in writing, the proposed reconstruction plans of Lessee,
which approval shall not be unreasonably withheld. Lessee agrees to complete such
reconstruction and repairs in accordance with said approved plans and specifications with
diligence.
6.5 Cooperation. Gypsum and Lessee each agree it will cooperate with the
other, to such extent such other Party may reasonably require, in connection with the
prosecution or defense of any action or proceeding for the collection of any insurance
monies that may be due in the event of any loss or damage, and it will execute and
deliver to such other Party such instruments as may be required to facilitate the recovery
of any insurance monies.
6.6 Policy and Certificate. Each Party shall provide copies of all policies or
certificates of the insurance companies providing said policies which are relevant to the
provisions of this Lease.
Section 7. Use and Compliance with Laws.
7.1 Authorized and Prohibited Use. Lessee agrees that the Premises and the
Improvements will, during the Term of this Lease, be used solely for public recreation
uses, including motorized recreation. Gypsum shall not lease, sublease or license the
right to use any portion of the Premises to any third Party without the prior written
consent of Lessee. Use of the Premises by Lessee and its users shall be limited to areas
within the Premises and such uses shall not encroach onto the Conservation Property or
unreasonably interfere with or disturb the Conservation Values established therefor.
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7.2 Site Host. At the request of Lessee, Gypsum will consider allowing a site
host to reside on the Premises during the period of time each year when the Premises is
open to motorized recreation.
7.3 Use Fees. The Lessee may charge a use fee and may require membership
in its organization for use of the Premises. Gypsum, Lessee, and Eagle County must
agree on any fees to be charged to users of the Premise, including the fee structure,
methods of payment, and enforcement. Lessee shall use the fees for the construction,
maintenance and operation of the Premises, including the Improvements.
7.4 Lessee will develop and conspicuously post Rules and Regulations for
public use of the Property to be approved by Gypsum and the Management Advisory
Committee. Failure of a user to comply with posted Rules and Regulations can result in
loss of track use privileges and access to the Property. The Lessee shall be responsible
for educating users on proper use of the Premises and the need for compliance. Such
Rules and Regulations must allow public use of the Premises, subject to reasonable
restrictions imposed by Gypsum and the Management Advisory Committee, and must
include the following at a minimum:
a. No fires or fireworks.
b. Dogs must be leased at all times.
C. Dogs are not permitted in the track area.
d. The Premises are open sunrise to sunset.
e. The Premises are closed to motorized recreational use from
September 30 to May 1 each year.
f. No motorized use is permitted in adjacent conservation easement
portions of the Property.
g. No camping or other overnight use.
h. Any use that impedes the flow of traffic on Trail Gulch Road is
prohibited.
i. All special events require a special use permit from Gypsum.
j. Changes, alterations and manipulations of the track or other
Improvements or Existing Improvements is prohibited.
k. Hunting by properly licensed hunters in -season is permitted.
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1. Recreational shooting or other discharge of weapons is prohibited,
except by licensed hunters in -season.
In. Motorized recreation must stay on formally established tracks.
n. Drone use is prohibited unless approved for a specific purpose by
Gypsum.
Lessee acknowledges that additional Rules and Regulations may be required by
Gypsum and the Management Advisory Committee from time to time and Lessee agrees
to implement and post such additional Rules and Regulations upon reasonable and timely
notice.
7.5 Emergency Access. Lessee will incorporate access routes for law
enforcement, fire, and EMS into the planning and design of the Improvements, including
designating ingress/egress points and a location for a helicopter landing zone. Prior to
the opening of the Premises for use by the public, Gypsum shall review and approve the
emergency access routes. Future modifications to the Improvements may also require
review as determined by Gypsum and/or local emergency services. Lessee shall post
evacuation plans on the Premises.
7.6 Fire Suppression Equipment. Lessee shall maintain fire suppression
equipment and a first :yid kit located on the Premises as recommended by the Gypsum
Fire Protection District.
7.7 Compliance. Lessee shall, throughout the Term of this Lease, and at no
expense whatsoever to Gypsum, promptly comply or cause compliance with the
Restrictive Covenant and Management Plan, and all laws and ordinances and the orders,
rules, regulations and requirements of duly constituted public authorities, including all
zoning, land use and building regulations, existing or hereafter created, foreseen or
unforeseen, ordinary as well as extraordinary applicable to the Premises or the
Improvements.
7.8 Hazardous Materials.
a. Lessee shall not cause or permit any Hazardous Material to be
brought upon, kept or used in or about the Premises by Lessee, its agents,
employees, contractors or invitees, without the specific prior written consent of
Gypsum (which Gypsum may withhold in its sole discretion). If Lessee breaches
the obligations stated in the preceding sentence, or if the presence of Hazardous
Material on the Premises caused or permitted by Lessee results in contamination
of the Premises, or if contamination of the Premises by Hazardous Material
otherwise occurs for which Lessee is legally liable to Gypsum for damage
resulting therefrom, then Lessee shall indemnify, defend and hold Gypsum
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harmless from any and all claims, judgments, damages, penalties, fines, costs,
liabilities or losses (including, without limitation, diminution in value of the
Premises, damages for the loss or restriction on use of rentable or usable space or
of any amenity of the Premises, damages, arising from any adverse impact on
marketing of space, and sums paid in settlement of claims, reasonable attorney
fees, consultant fees and expert fees) which arise during or after the Lease Term as
a result of such contamination. This indemnification of Gypsum by Lessee
includes, without limitation, costs incurred in connection with any investigation of
site conditions or any cleanup, remedial, removal, or restoration work required by
any federal, state, or local governmental agency or political subdivision because of
Hazardous Material present in the soil or ground water on or under the Premises
due solely as a result of the actions or omissions of the Lessee. Without limiting
the foregoing, if the presence of any Hazardous Material on the Premises caused
or permitted by Lessee results in any contamination of the Premises, Lessee shall
promptly take all actions at its sole expense as are necessary to return the Premises
to the condition existing prior to the introduction of any such Hazardous Material
to the Premises; provided that Gypsum's approval of such actions shall first be
obtained, which approval shall not be unreasonably withheld so long as such
actions would not potentially have any material adverse effect on the Premises.
b. As used herein, the term "Hazardous Material" means any hazardous
or toxic substance, material or waste which is or becomes regulated by any local
governmental authority, the State of Colorado or the United States Government.
The term "Hazardous Material" includes, without limitation, any material or
substance that is (i) defined as a "hazardous substance" under appropriate state law
provisions; (ii) petroleum; (iii) asbestos; (iv) designated as a "hazardous
substance" pursuant to Section 311 of the Federal Water Pollution Control Act (33
U.S.C. § 1321); (v) Conservation and Recovery Act (42 U.S.C. § 6903); (vi)
defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601); or
(vii) defined as a "regulated substance" pursuant to Subchapter 1X, Solid Waste
Disposal Act (Regulation of Underground Storage Tanks) (42 U.S.C. § 6991).
7.9 Contest. Provided such will not subject the Premises to a foreclosable lien,
Lessee shall have the right to contest, by appropriate legal proceedings, without cost or
expense to Gypsum, the validity of any law, ordinance, order, rule, regulation or
requirement of a nature herein referred to and to postpone compliance with the same,
provided such contest shall be promptly and diligently prosecuted by and at the expense
of Lessee, that Gypsum shall not thereby suffer any civil, or be subject to any criminal
penalties or sanctions, and that Lessee shall properly protect and save harmless Gypsum
against any liability and claims for any such noncompliance or postponement of
compliance. Provided, further, if requested so to do by Gypsum, Lessee shall first furnish
Gypsum a bond, in form and amount, and issued by a surety company reasonably
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satisfactory to Gypsum, or post other security in such amount and such type reasonably
satisfactory to Gypsum, guaranteeing to Gypsum, compliance by Lessee with such law,
ordinance, order, rule, regulation, or requirement and indemnifying Gypsum against any
and all liability, loss and damage which Gypsum may sustain by reason of Lessee's
failure or delay in complying therewith. Gypsum shall have the right, but shall be under
no obligation, to contest by appropriate legal proceedings, at Lessee's expense, any such
law, ordinance, rule, regulation or requirement.
7.10 Taxes. Lessee shall pay any personal or other property taxes or charges
assessed on the Premises, or any portion of such taxes or charges attributable to, the
Improvements, if any. Lessee shall pay, as additional rent, any increase in real property
taxes levied against the Premises which is directly attributable to Lessee's Improvements
on the Premises following proof of such increase to Lessee.
Section 8. Permits and Licenses.
8.1 Lessee shall at its sole cost and expense, procure or cause to be procured
any and all necessary permits, licenses or other .authorizations required by the lawful and
proper use, occupation, operation and management of the Premises and Improvements,
including costs and expenses related to obtaining the necessary zoning, permits, licenses,
and authorizations related to the authorized uses of the Premises.
Section 9. Representations and Warranties of Gvnsum.
9.1 Gypsum represents and warrants that it is in compliance with all necessary
zoning requirements required for the Premises and that no additional zoning is necessary
with regard to the uses of the Premises as contemplated under this Lease.
9.2 Gypsum represents and warrants that it is legally qualified, empowered, and
able to enter into this Lease, and that the execution, delivery, and performance hereof
shall not constitute a breach or violation of any agreement, contract or other obligation of
any kind to which Gypsum is subject or by which it is bound.
Section 10. Representations and Warranties of Lessee.
10.1 Lessee, and the individual signing this Lease on behalf of Lessee,
represents and warrants that it is legally qualified, empowered, and able to enter into this
Lease, and that the execution, delivery, and performance hereof shall not constitute a
breach or violation of any agreement, contract or other obligation of any kind to which
the Lessee is subject or by which it is bound.
Section 11. AssignmenL Sablettinz Cowym-yancing and Encumbering.
11.1 Lessee shall not lease, assign, convey or encumber, in whole or in part, any
portion of the Lease, the Premises, or the Improvements, or any part thereof, to any other
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person or entity without the prior written consent of Gypsum, which consent may be
withheld in the sole discretion of Gypsum.
Section 12. Defaults.
12.1 Default Defined. The occurrence of any of the following events shall
constitute an event of default by the Lessee under this Lease:
a. Comply with Material Terms and Conditions. Lessee shall violate or
fail to comply with any material provision, term, or condition of this Lease for a
period of thirty (30) days after notice of the same, except that any violation of the
Restrictive Covenant, the Management Plan, or Section 6. of this Lease shall
constitute an immediate event of default.
b. Substantial Violation. The Lessee commits a "substantial violation"
as defined in Section 1340-107.5, C.R.S.
C. Bankruptcy. The Lessee declares bankruptcy.
d. Abandonment. The Lessee abandons the Premises for any period of
time.
Section 13. Termination.
13.1 Annual Termination. Either Party may terminate this Lease, for any reason,
by written notice to the other Party no later than December 1 of any year, which notice
shall be effective January 1 of the following year.
13.2 Termination Upon Default.
a. Default by Lessee. In the event of default of this Lease by Lessee,
Gypsum may, in addition to all other rights and remedies provided at law or in
equity, terminate this Lease and forthwith repossess the Premises and be entitled
to recover as damages a sum of money equal to the total of (i) the cost of
recovering the Premises, including Gypsum's reasonable attorney's fees; (ii)
damages for the wrongful withholding of the Premises by Lessee; and (iii) any
other sum of money and damages owed by Lessee to Gypsum.
b. Default by Gypsum. Lessee may terminate this Lease if Gypsum
shall violate or fail to comply with any material provision, term or condition of
this Lease for a period of thirty (30) days after notice of the same.
13.3 Surrender. On the last day of the Term, or upon any earlier termination of
this Lease, Lessee shall surrender the Premises into the possession and use of Gypsum
without delay
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Section 14. Notices.
14.1 Notice. Every notice and other communication required under the terms of
this Lease or which one Party shall elect to give the other, shall be in writing and shall be
deemed properly given if sent by registered or certified mail, postage fully prepaid, to the
address provided below and, when so addressed, shall be deemed to have been properly
served, valid and sufficient for all purposes hereof, seventy-two (72) hours after being
deposited in a United States Post Office.
14.2 Addresses. All notices and other communications to the parties shall be
mailed to their respective addresses as follows.
If to Gypsum: Town:
With a copy to:
If to Lessee:
With a copy to:
Town Manager
Town of Gypsum
P.O. Box 130
Gypsum, CO 81637
Robert G. Cole
Collins Cockrel & Cole
390 Union Boulevard, Suite 400
Denver, CO 80228
Telephone: (303) 986-1551
Facsimile: (303) 986-1755
The Parties hereto reserve and shall have the right to change from time to time
their said respective addresses for the purposes hereof. Every such change of address
shall be by notice in writing given in the manner herein provided.
Section 15. Indemnification.
15.1 Lessee will indemnify and hold harmless, to the full extent allowed by law,
Gypsum, any assignee of Gypsum's interest in this Lease or the Premises, and Eagle
County against and from all liabilities, obligations, damages, penalties, claims, costs,
charges and expenses, including reasonable attorney's fees, which may be imposed upon
or incurred by or asserted against Gypsum, such assignee, or Eagle County by reason of
any of the following occurring during the Term of this Lease:
a. Any work or thing done in, on, or about the Premises or any part
thereof, except if caused by the willful and wanton actions of Gypsum, Eagle
County, or their respective employees, agents or representatives;
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b. Any use, non-use, possession, occupation, condition, operation,
maintenance or management of the Premises, and the Improvements;
C. Any negligence on the part of Lessee or any of its agents, servants,
volunteers, members, or employees;
d. Any accident, injury, or damage to any person or property occurring
in, on, or about the Premises, the Improvements or any part thereof or any public
road or other space adjacent thereto not the result of Gypsum, Eagle County or
their respective employees', agents', or representatives' willful and wanton actions
or omissions;
e. Any failure by Lessee to perform or comply With any of the
covenants, agreements, terms, or conditions contained in this Lease on its part to
be performed or complied with; or
f. Any tax attributable to the execution, delivery or recording of this
Lease or any modification hereof. In case any action or proceeding is brought
against Gypsum, or its assignee by reason of any such claim, Lessee, upon written
notice from Gypsum or such designee, will, at Lessee's expense, resist or defend
such action or proceeding by counsel approved by Gypsum or such assignee in
writing, such approval not to be unreasonably withheld or delayed.
Section 16. Successors and Assims.
16.1 This Lease shall inure to the benefit of and be binding upon the successors
and assigns of Gypsum and the permitted successors and permitted assigns of Lessee.
Section 17. Waiver.
17.1 The waiver by either Party of any breach by the other of any term, covenant
or condition contained in this Lease shall not be deemed to be a waiver of any subsequent
breach of the same or other term, covenant, or condition.
Section 18. Recordation of Lease.
18.1 Either Party may record this Lease in the land records of the Eagle County
Clerk and Recorder and a memorandum of lease may also be filed with the Colorado
Department of Revenue.
Section 19. Entire Aereement.
19.1 This Lease contains the entire agreement between Gypsum and Lessee with
respect to the subject matter hereof and supersedes and cancels any prior representations,
{005685".DOCX / 3 } 13
understandings and agreements between Gypsum and Lessee with respect to the subject
matter of this Lease.
Section 20. Paragraph Headings.
20.1 The paragraph headings in this Lease are inserted for convenience and are
not intended to indicate completely or accurately the contents of the paragraphs they
introduce, and shall have no bearing on the construction of the paragraphs they introduce.
Section 21. Execution of Documents.
21.1 Lessee agrees to execute any certificates of estoppel and subordination and
attornment agreements as Gypsum shall request from time -to -time.
Section 22. Time of the Essence.
22.1 The Parties hereto agree that time is of the essence of this Lease.
Section 23. Invaliditv.
23.1 If any term or provision of this Lease or the application thereof to any
person or circumstance shall to any extent be invalid or unenforceable, the remainder of
this Lease, or the application of such term or provision to persons or circumstances other
than those as to which it is invalid or unenforceable, shall not be affected thereby, and
each term of this Lease shall be valid and be enforced to the fullest extent permitted by
law.
Section 24. Amendment.
24.1 This Lease shall not be altered, changed or amended, except by an
instrument in writing, signed by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed the foregoing Lease
as of the date and year first above written.
TOWN OF GYPSUM, as Lessor
By: �w JkOu
Jeff Sl own Manager
{00568548.DOCX / 3 } 14
Attest: Q� '
_S
6t�-�ps
Danette Schlegel, Town Jerk li;'ool
STATE OF COLORADO )
ss.
COUNTY OF 0510 )
The foregoing Lease was acknowledged before me this � day of
L4,14C—, 2017 by Jeff Shroll and Danette Schlegel, as Town Manager and Town
Cl rk, respectively, of the Town of Gypsum.
Witness my hand and officia
My commission expires:
(0056854B.DOCX / 3 ) 15
ROCKY MOUNTAIN SPORT RIDERS,
INC., AS LESSEE
By:, woe o'1�la��c
Its: Pre-.-Af
STATE OF COLORADO
ss.
The foregoing Lease was acknowledged before me this /6 day of
2017 by ash -aid c� of Rocky Mountain
Sport Riders, Inc.
Witness my hand and official seal.
My commission expires: ,6i^ r
STEPHANIE ROYBAL
NOTARY PUBLIC
STATE OF COLORADO otary Aublic yj
NWARY ID 90144006820
Nb Commission Expires February 5, 2016
Consented to by Eagle C�
l ik t V'�6 ¢min
, D"t i
STATE OF
COUNTY OF
The foregoing Lease was
, 2017 by
Colorado.
EAGLE COUNTY, COLORADO
Witness my hand and official seal.
My commission expires:
as
ss.
before me this
Notary Public
{00568548.DOCXl3 1 16
_ day of
of Eagle County,
PROPERTY
(0056$548.DOCX / 3 ) 17
LEGAL DESCRIPTION
DRY LAKE RANCH
A Parcel of land located in the South 1/2 of Section 18, Township 4 South, Range 85 West of the 6th
Principal Meridian, County of Eagle, State of Colorado.
Said Parcel being more fully described as follows:
Beginning at the West 1/4 Comer of sold Section 18, a 2.5' Braes Cap, from which the Southwest Comer
of Section 18, a 2.5" Brass Cap, bears SOO'00'00'W, o distance of 2650.84', this line being the Basis of
Bearings.
Thence the following sewn (7) courses:
1) S89'59'52'E along the East—West 1/4 Una of Section 18, a distance of 3953.96' to the East 1/16
C—C Comer of Section 18;
2) departing said 1/4 Una S00'09'37E drong the East Une of the NWI/4 of the SEI/4 of Section 18,
a distance of 1320.72' to the Southeast 1/16 comer of said Section 18;
3) N89'56'03'E along the North Line of sold SE1/4 of the SEi/4 of Section 18, o distance of 1319.88'
to the South 1/16 Comer of Section 17 and 18:
4) soo-iv08"E, along the East Line of sold SEi/4 or the SEi/4 of Section 18, a distance of
1319.15' to the Southeast Comer of said Section 18;
5) S89'51'58"W, along the South Line of the Southeast 1/4 of Section 18, a distance of 2640.91' to
the South 1/4 Comer of Section 18;
6) 58931'58"W along the South Line of the SWI/4 of Section 18, a distance of 2640.91' to the
Southwest Comer of Section 16;
7) N00'00'00'W along the West Une of the Southwest 1/4 of Section 18, a distance of 2650.84' to
the West 1/4 comer of Section 18, and the Point of Beginning:
Excluding the 5 Acre Pimie Parcel described as follows;
Commencing at the West 1/4 Corner of said Section 18, a 2.5' Braze Cap, from which the Southwest
Comer of Section 18, a 2.5' Bross Cap, bears SOO'00'00'W, 2650.84', this line being the Basis of Bearings
Thence S81'02'01'E, a distance of 2532.09' to the Point of Beginning.
Thence N90'00'00'E, a distance of 421.65' (1.98);
Thence S00'00'00"E, a distance of 174.92' (1.99).
Thence 527'00'OD'W, a distance of 456.06' 1-100);
Thence N90'00'00"W, a distance of 265.48' 1-101);
Thence N05'00'00'E, a distance of 583.50' (1.102) to the Point of Beginning.
Containing 280.419± Acres
EXHIBIT A /OVERVIEW) DRY LAKE CONSERVATION
EASEMENT & RESTRICTIVE COVENANT PORTION
Located in the South 112 of Section 18, T45, R85W, 6th PM
County of Eagle , State of Colorado
DRAWN 8Y.• RPK/JMUI DATE 12-14-16
SHEET 2 OF 10 1 16118 -DRY
KIPP LAND SURVEYING
RANDYKIPP P.L.S.
P.O. Box 3154
Eagle, CO 81631
(970) 390-9540
email: randyQlapplandsurue
web: Idnniandsurueuina.
x:11: i
PREMISES
(005685U.DOCX / 3 ) 18
LEGAL DESCRIPTION
DRY LAKE MOM EASEMENT
A Conservation Easement located in the South 1/2 of Section 18, Township 4 South, Range 85 West of the 6th
Principal Meridian, County of Eagle, State of Colorado.
Sold easement being more fully described as follows:
Commencing at the West 1/4 Comer of sold Section 18, a 2.5' Brass Cap, from which the Southwest Comer of
Section 18, a 2.5" Brass Cop, bears SOO'00'00'W, 2850.84', this line being the Basis of Bearings.
Thence S8939'52'E along the East-West 1/4 line of sold Section 18, a distance of 3953.96' to E1/16
Center -Center comer of Section 18, a 2" Aluminum Cap (LS /20895) and the Point of Beginning.
Thence the following forty-nine (49) courses:
1) S00'09'37E along the East Una of the NWi/4 of the SEi/4 of Section 18, a distance of 1320.72' to
the Southeast 1/16 comer of sold Section 18, a 2' Aluminum Cap (LS #20695) (1.51N
2) S173928"E, a distance of 149.92' (1.52);
3) S1725'28'E, a distance of 150.17' (1.53):
4) S09141'41 "E, o distance of 172.29' (L54);
5) S0240'40'E, a distance of 176.31' (1.55);
6) S1420'55W, a distance of 169.67' (L56);
7) S1424'57"W, a distance of 155.27' (L57);
8) S31'38'31 "W, a distance of 210.17' (L58);
9) S313e29"W, a distance of 229.33' to the South Line of the Southeast 1/4 of said Section 18 (L59);
10) SB9'51'5B'W, along sold South Una, a distance of 1133.41 (L60) to the South 1/4 comer of said
Section 18, a 2.5' Aluminum Cap (LS #20695);
11) S89'51'58"W, along the South line of the Southwest 1/4 of Bald Section 18, a distance of 428.29' (1_61):
12) N69'44'26"W, a distance of 333.72' (L62);
13) N69'00'24'W, a distance of 284.79' (L63);
14) N53'14'28'W, a distance of 294.61' (L64);
15) N53107'45'W, a distance of 300.84' (L65);
16) N507506"W, a distance of 461.43' (L66);
17) N3030'13W, a distance of 337.01' (L67):
18) N2725'52"W, a distance of 311.76' (L68);
19) N14'50'53'W, a distance of 212.26' (L89);
20) N20'50'48'W, a distance of 250.36' (L70);
21) NO2'40'51'E, a distance of 219.09' (1.71);
22) N54'58'49'E, a distance of 340.90' (L72);
23) N58'08'34"E, a distance of 467.91' (L73);
24) N59'09'53E, a distance of 257.62' (L74);
25) N34'12'14'W, a distance of 28.98' (L75) to the East-West 1/4 Una of said Section 18;
26) 589'59'52"E, along said East-West 1/4 Une, a distance of 80.13' (1.76);
27) S37'58'41'E, a distance of 274.34' (L77);
28) S24'41'41'E, o distance of 110.80' (L78);
29) 540'43'29'E, a distance of 209.89' (L79);
30) S40'42'45`E, a distance of 170.05' (LBO);
31) S4639'54 E, a distance of 165.54' (1_81);
32) S4637'21'E, a distance of 165.81' (U12);
33) S35'l2'23"E, a distance of 105.07' (1.83);
34) S4140'57E, a distance of 110.24' (1_84);
35) S89'26'55"E, a distance of 174.71' (1,85);
36) S8637'50"E, a distance of 164.72' (1.86);
37) S63'43'26'E, a distance of 140.94' (1_87);
38) S58'11'22'E, a distance of 111.28' (L88). to a point of curvature;
39) along a curve to the left 188.90', sold curve having a radius of 385.00', a central angle of
28'08'44', and a chord bearing of N44'08'01"E for a distance of 167.01' (C3);
40) N30M4!40'E. a distance of 145.70' (1_89), to a point of curvature;
41) along a curve to the right 85.58', sold curve having a radius of 465.00', a central angle of
1039'55", and a chord bearing of N3524'37"E for a distance of 86.44' (C4);
42) N3945'10'E, a distance of 132.41' (UIO);
43) NBB'46'55"E, a distance of 193.82' (L91);
44) N5728'13'E, a distance of 179.04' (L92);
45) N28'48'20"E, a distance of 93.18' (1_93);
46) NlOM7'28"E, a distance of 136.47' (1_94);
47) N12'05'39'W, a distance of 104.55' (1_95);
48) N2222'30'W, a distance of 106.38' (1_96) to the said East-West 1/4 Una;
49) S89'59'52'E, along said East-West 1/4 Une, a distance of 592.59' (1.97) to the Point of Beginning:
Containing 157.6711 Acres
EXHIBIT A - DRY LAKE
MOT O EASEMENT
Located in the South 1/2 of Section 18, VS, R85W, 6th PM
County of Eagle , State of Colorado
DRAWN BY RPK/JMU DA TE' 7-14-16
SHEET 9 OF 9 DWG NAME-
16118-DRY
AME16118-DRY LAKE -EASE
KIPP LAND SURVEYING
RANDYKEPP P.L.S.
P.O. Box 3154
Eagle, CO 81631
(970) 390-9540
emaiL randy@Wpplandsurveying.com
web: lcipplandsurueying. com
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EXHIBIT C
RESTRICTIVE COVENANT
100568548.DOCX / 3 ) 19
Engle County. Co 201622413
Repine 019r1en 12/90/2016
POe: 18 10:26 47 AM
REC: S0.00 DOC: $0.00
RESTRICTIVE COVENANT
S RESTRICTIVE COVENANT (this "Covenant's is entered into as of the,
day of L016 by Eagle County, Colorado, a body corporate and politic ("County" or
"Eagle') and the Town of Gypsum, a home rule municipal corporation of the State of Colorado
organized pursuant to Article XX of the Colorado Constitution and Town's Home Rule Charter
effective October 31, 1982 ("Gypsum" or "Town"). County and Town shall hereinafter
sometimes be referred to individually as a "Party" and collectively as the "Parties".
RECITALS
A. Gypsum is the owner of that certain parcel of land, totaling approximately 275.41 acres,
located in the County of Eagle, State of Colorado that is legally described in.Exhibit A and
depicted in Exhibit B, both of which are attached hereto and incorporated herein by reference
(hereinafter the "Property").
B. County agreed to contribute to the purchase of the Property, with approximately 117.74
acres of the Property permanently preserved by conservation easement recorded in the Office of
the Eagle County Clerk and Recorder on at Reception Number
Wo (the "Conservation Property'l.
C. In connection with the conservation of the Conservation Property, Gypsum agrees, by
this Covenant, io restrict the uses that may occur on that portion of the Property legally described
in Exhibit C, and depicted in Exhibit D, both ofwbich are attached hereto and incorporated
herein by reference, totaling approximately 157.67 acres (the "Covenant Property'. The
Covenant Property shall not lie considered Open Space Land or part of Eagle County's Open
Space Program.
D. • In connection with the conveyance of the Property and County's contribution to the same,
Gypsum agrees to restrict the Covenant Property as set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Gypsum makes the following acknowledgements and
covenants for the benefit of County and its successors and assigns:
1. OPEN TO THE PUBLIC. Gypsum shall ensure that the Covenant Property
shall be open to the public subject to the establishment of reasonable rules and regulations
pertaining to use, reasonable hours of operation, seasonal or other necessary closures which may
include, but not be limited to, temporary closures resulting from damage: destruction, ,
maintenance or improvement to the Covenant Property (the "Rules and Regulations'l. In the
event Gypsum determines that a change in applicable federal or state law or other conditions
makes on-going compliance with the covenant set forth in this paragraph 1 impractical or
`Co`�79,
impossible, then the Parties shall meet and make good faith efforts to address and identify
mutually acceptable modifications to this paragraph with the objective of keeping the Covenant
Property open and available to the public.
2. LAND MANAGEMENT.
a. Gypsum recognizes the importance of good resource management and
stewardship and shall employ good land management techniques in its management and
operation of the Covenant Property which may include but not be limited to seasonal closures for
wildlife and noxious weed control on the Covenant Property.
b. Management Plan. The Covenant Property shall be used, managed and
open to the public in accordance with a land management plan approved by County a6d Gypsum
(the "Management Plan" or the "Plan') and as otherwise set forth in this Covenant. The
Parties intend that the Management Plan shall be finalized within six (G) months of execution of
this Covenant, but in no case shall said Plan be finalized and approved by each Party later than
thirty (30) days prior to the date the Covenant Property is open to the public for recreational
purposes, The Management Plan shall provide that County shall have no responsibility for
management or other expenses related to the Covenant Property. The Management Plan shall
provide discretion to the Town for management and oversight of day-to-day operational matters,
including establishment of, and changes to the Rules and Regulations, without the need for
amendment to the Management Plan. Before undertaking or allowing any activities or uses not
expressly permitted or addressed in a current Management Plan, Gypsum shall seek amendment
to the Management Plan. Gypsum may not install, construct or place any New Improvements (as
defined in Section 3b) not identified in the current Management Plan without amendment to the
Management Plan. Any amendment to the Management Plan shall be approved by Gypsum and
County in writing.
C. Advisory Management Committee. Gypsum shall create an advisory
management committee for• the purpose of making recommendations to the Town in accordance
with the guidelines and policies expressed in the Management Plan in order to ensure sound
management and use of the Covenant Property. Such committee will generally be comprised of
representatives from the Town, County, user groups, Colorado Parks and Wildlife and the
Bureau of Land Management. Unless otherwise agreed by the County in writing, at all times
there shall be at least one County representative, selected by the County, serving on the Advisory
Management Committee.
d. Lease. License or Third Party Management Agreement. County shall be
entitled to review and approve the form of any lease or other agreement, and any amendment
thereto, between any group that may enter into an agreement with the Town for use and
management of all or a portion of the Covenant Property. The terns of any such lease or other
201622413
agreement shall require compliance with the terms of this Covenant and the current Management
Plan.
3. SUBDMSION AND DEVELOPMENT RESTRICTED. County and Gypsum
agree that the division, subdivision or de facto subdivision of the Property, whether by legal or
physical process, into two or more parcels of land or partial or separate interests (including, but
not limited to, condominium interests or the partition of undivided interests) is prohibited.
Ownership of the Property shall remain as a single parcel, with the Covenant Property being
subject to this Covenant. The construction or location of any New Improvements (defined below)
on the Covenant Property is prohibited, except as set forth in paragraph 3b below.
a. Existing Improvements. There are currently no existing improvements on the Covenant
Property except for five storage buildings and a shade shelter. The Property is bisected by Trail
Gulch Road, which is a County -maintained road. There is an existing driveway which connects
Trail Gulch Road to the area where these structures are located.
b. New Improve
L No development, installation or placement of any temporary or permanent
buildings, structures or mobile homes ("New Improvements") is permitted on the
Covenant Property except that Gypsum may allow the construction, placement or
installation of restrooms, structures, or buildings to be used in connection with permitted
recreational uses allowed by this Covenant and to be addressed in the Management Plan,
which New Improvements, when taken together shall not exceed a total of five thousand
(5,000) square feet. The allowed New Improvements may not be used for residential
purposes, other than for seasonal care taker facilities, and construction and use of all such
New Improvements shall comply with the Eagle County Land Use Regulations.
ii. Road Construction, Trails, Motorized Paths and Paving. Gypsum may
place, maintain, restore and replace roads, trails and motorized paths within the Covenant
Property. Construction of additional paved or unpaved roads Is permitted, subject to
County approval and issuance of any necessary permits or land use approvals required
under the Eagle County Land Use Regulations. Construction of new or additional and
motorized recreational paths, including berms and jumps, are permitted subject to the
requirements of the Management Plan.
iii. Fences. Gypsum may maintain, repair, replace or remove existing fences.
Gypsum may construct, maintain, repair and replace new fences anywhere on the
Covenant Property, provided the location and design of such replacement or new fences
are wildlife friendly and approved by the Advisory Management Committee.
iv. Utility Improvements. Gypsum may maintain, repair or replace existing
utilities on the Covenant Property including (a) electric power poles, transformers and
201622413
power lines; and (b) telephone and communications towers, poles and lines; and (c) gas
lines; and (d) sewer, septic and waste water facilities. Gypsum may install new utilities
on the Covenant Property, including (a) electric power poles, transformers and power
lines; and (b) telephone and communications towers, poles and lines; and (c) gas lines;
and (d) sewer, septic and waste water facilities and (e) renewable energy generating
systems such as wind, solar, geothermal or hydroelectric, only with approval of the
Town, the Advisory Management Committee and the County, and where applicable, with
amendment to the Management Plan. Any area of the Covenant Property disturbed by
maintenance, repair or replacement of the utilities shall be revegetated and restored to a
condition similar to that existing prior to the disturbance.
V. Sin s. Gypsum may plane, maintain, restore and replace, interpretive and
directional signs on the Covenant Property as well as signage recognizing the funders and
participants in the acquisition of the Covenant Property. Any sign larger than 24 square
feet shall be approved, prior to its installation, by the County.
A. Recreational Trails. Gypspm may construct recreational trails on the
Covenant Property in accordance with the Management Plan, which shall set forth
general guidelines for the use and maintenance of such trails.
vii. Motorized Track. Gypsum may construct a motocross track and related
amenities on the Covenant Property that are consistent with the restrictions contained in
this Covenant and in accordance with the requirements of the Management Plan.
4. OTHER PROHIBITED USES
a. Town shall not establish or maintain a feed lot on the Covenant Property. For
purposes of this Covenant, "feed lot" means a permanently constructed `confined area or facility
which is used and maintained continuously and exclusively for purposes of warm up or fattening
large numbers of livestock on the Covenant Property.
b. Except as specifically authorized herein, Town shall not engage in Industrial
Operations, as defined in the Eagle County Land Use Regulations, on the Covenant Property
without advance written approval of the County which may be withheld in County's sole
discretion. This prohibition shall not apply to the on-site repair of equipment necessary for the
maintenance of the Covenant Property.
c. Town may use agri-chemicals on the Covenant Property in accordance with all
applicable federal, state and local laws. The Town may also store, or allow the storage of within
enclosed preexisting storage structures or other allowed New Improvement structures on the
Covenant Property, heavy equipment necessary for the maintenance of the Covenant Property,
including necessary and related machinery fuels and fluids, and other repair items. Otherwise,
the treatment, permanent storage, disposal or release of hazardous materials on, from or under
4
209522413
the Covenant Property is prohibited. For the purpose of this Covenant, hazardous materials shall
mean any hazardous or toxic material or waste that is subject to any federal, state or local law or
regulation. Notwithstanding anything in this Covenant to the contrary, this prohibition does not
impose any liability on County for hazardous materials, nor does it make County an owner of the
Covenant Property
d. Except as expressly provided herein or in the Management Plan, no developed
golf courses, ball or recreational fields, equestrian centers or similar non -dispersed recreation
shall be permitted on the Covenant Property without advance written approval by the Advisory
Management Committee and County. Such written approval may be withheld in County's sole
discretion.
e. The exploration, mining, or extraction of minerals, oil, gas, or other
hydrocarbons, soils, sands, gravel, rock, or other materials e7vMerals'l on or below the surface
of the Covenant Property by Gypsum is prohibited on the Covenant Property without advance
written approval by the.Advisory Management Committee and County. Such written approval
maybe withheld in County's sole discretion
f. Other uses. Any uses of the Covenant Property not involving or supporting
dispersed recreation shall be approved in advance by the Town and County in writing. Such
written approval may be withheld in County's sole discretion.
5. SUBSEQUENT TRANSFERS OF THE PROPERTY. Gypsum agrees to
notify any party who may purchase, lease, or otherwise hold an interest in the Property or the
Covenant Property of the terms of this Covenant, and to provide a copy of the Covenant to such
party if requested. The conveyance document shall expressly refer to this Covenant and
acknowledge that all subsequent owners or holders of any subsequent interest in the Covenant
Property are subject to its terms. The failure of Gypsum to perform any act required by this
section shall not impair the validity of this Covenant. Further, Gypsum agrees to give written
notice to County of the transfer of any interest in the Property at least forty-five (45) days prior
to the date of such transfer. County provided funding through its Open Space Program toward
Gypsum's acquisition of the Property; therefore any voluntary sale, conveyance, transfer, lease,
or disposal of all or any portion of Gypsum's interest in the Property to a third party shall require
prior written approval from County and may require a refund to the County of its contribution, as
determined by County in its sole discretion. Notwithstanding any provision of this Covenant to
the contrary, in the event of any condemnation of the fee title, the requirements of this section
shall continue to apply.
6. CONDEMNATION. If any portion of Covenant Property is taken by
condemnation, or by purchase in lieu of condemnation, Gypsum shall recover the frill value of
the interests in'the Covenant Property subject to the taking or in -lieu purchase, and all damages
5
201622413.
resulting therefrom. Gypsum and County shall share the amount recovered such that County
shall receive 92% of the amount recovered and Gypsum shall receive the balance.
7. LAND USE APPROVALS. Nothing permitted by this Covenant constitutes
approval by any government or regulatory agency for construction, development or land use; nor
does any permit or approval granted by a government or regulatory agency override the terns of
this Covenant. Gypsum shall be solely responsible for obtaining all necessary approvals for the
lawful use of the Covenant Property. All improvements, reserved rights, structures or
construction continues to be subject to separate review and approval under the Eagle County
Land Use Regulations and nothing herein shall be considered to be pre -approval of any
improvement, reserved right, subdivision, use, structure or construction on the Covenant
Property.
8. ENFORCEMENT. The Parties acknowledge and agree that monetary damages
would not be sufficient to compensate County, for any breach hereof by Gypsum or its
successors and assigns. Should Gypsum or its successors, assigns or any occupant of the
Covenant Property breach or threaten to breach the terms and covenants of this Covenant, -then
the County shall have the express right (but not the obligation) to enforce the provisions hereof
and may exercise all rights and remedies, at law or in equity, to which it may be entitled on
account of such breach, including without limitation, the right to an action for damages, -specific.
performance of this Covenant and/or injunctive relief including obtaining a temporary restraining
order. Any Party having the right to enforce this Covenant shall not be liable for failure to
enforce it.
9. FURTEER ASSURANCES. The Parties hereto further agree to execute such
other documents and instruments as are or may become necessary or'convenient in order to
effectuate and cant' out the objectives of this Covenant.
10. NO WAIVER. The failure of any Party to require performance of any provision
of this Covenant shall not be deemed a waiver of any rights or remedies that said Party may
have, and shall not limit the Party's right to enforce the provision in the future. Waiver of any
breach of any provision shall not be deemed a waiver of any succeeding breach of the provision
or a waiver of the provision itself or any other provision.
11. NOTICE. Any notice required to be delivered hereunder shall be deemed to be
delivered on the earlier of actual receipt or, whether actually recdived or not, when deposited in
the United States mail, postage pre -paid, registered or certified mail, return receipt requested,
addressed as follows:
If tc Gypsum: Town of Gypsum
Jeff Shroll, Town Manager
Post Office Box 130
Gypsum, CO 81637
6
201622493
Telephone: 970-524-7515 -
With copy to: Collins Cockrel Cole
Attn: Kathryn G. Winn
390 Union Blvd. Suite 400
Denver, CO 802284556
Phone: 303-986-1551
Facsimile: 303-986-1755
Eagle County: Eagle County
.P.O. Box 850
Eagle County, CO 81631
Attn: Toby Sprunk, Open Space Director
Phone: 970-328-8692
Facsimile: 970-328-8698
With a copy to: Eagle County Attorney's Office
500 Broadway
P.O. Box 850
Eagle County, CO 81631
Attn: Bryan R. Treu
Phone: 970-328-8685
Facsimile: 970-328-8699
The Parties hereto and their respective heirs, executors, administrators, successors and
assigns may, from time to time and at any time, change their respective addresses. Any change
properly made is effective twenty (20) days after the delivery of written notice to all other Parties
to this Covenant in the manner provided herein.
12. SUBORDINATION. The Covenant Property is not subject to any mortgages or
liens at the time of grant of thi's Covenant, and thus no subordination is necessary. No provisions
of this Covenant shall be construed as impairing the ability of Gypsum to use the Covenant
Property as collateral for subsequent borrowing, provided that any mortgage or lien arising from
such borrowing shall be subordinate to this Covenant.
13. DRAFTING. The Parties acknowledge that this Covenant has been negotiated at
arm's length and in good faith, and that each Party has been given the opportunity to be
represented by independent legal counsel, and that this Covenant is the result of mutual
agreement and negotiation, and shall not be deemed to have been drafted solely by any Party and
the Parties hereby waive the benefit of any rule of contract interpretation or construction
requiring that the same be construed against the drafting party in the event of ambiguity.
14. THIRD PARTY BENEFICIARIES. This Covenant is entered into for the sole
benefit of the Parties, and no other parties are intended to be direct or indirect beneficiaries of its
provisions and no third party shall have any rights in, under, or to this Covenant.
7
20162-2413
15. RUN WITH THE LAND. This Covenant and the terms, conditions and other
provisions hereof shall be covenants that run with and bind the Covenant Property and shall be
binding on Gypsum and its successors and assigns. This Covenant shall be recorded in the real
property records of Eagle County, Colorado and shall be enforceable by County. The provisions
of this Covenant shall be set forth or referenced in any lease or deed pertaining to the Property
executed on or after the date hereof.
16. SEVERABILITY. Whenever possible, each provision of this Covenant shall be
interpreted in such a manner as to be valid under applicable law, provided, however, if any
provision of this Covenant shall be invalid or prohibited under applicable law, such provision
shall be ineffective to the extent of such invalidity or prohibition without invalidating the
remaining provisions of this Covenant.
17. GOVERNING LAW. This Covenant is to be governed and construed in
accordance with the laws of the State of Colorado.
18. COUNTERPARTS. This Covenant may be executed in several counterparts,
each of which shall be fully effective as an original, but all of which together shall constitute one
and the same instrument.
19. HEADINGS. Paragraph headings within this Covenant are inserted for
convenience only and are not intended to and shall not govern, limit or aid in the construction of
any terms or provisions contained in this Covenant.
20. MODIFICATION. The Parties agree that any modifications of this Covenant
shall be effective only when made in writing signed by the Parties or their successors and assigns
and recorded with the Clerk and Recorder of Eagle County, Colorado.
21. RULE AGAINST PERPETUITIES. The Parties intend that this Covenant and
the covenants, duties, obligations, rights and remedies shall not be subject to the rule against
. Perpetuities.
22. LIABILITY AND IMMUNITY. Town assumes all liabilities associated with
the development and public use of the Covenant Property. Notwithstanding the foregoing, the
Town and the County agree and understand that each is relying on and does not waive, by any
provisions of this Agreement, the monetary limitations or terms or any other rights, immunities,
and protections provided by the Colorado Governmental Immunity Act, C.R.S. 2410-101, et
seq., as from time to time amended or otherwise available to each party or any of its officers,
agents, or employees.
23. FORCE MAJEURE. Notwithstanding anything to the contrary stated herein,
Town shall not be obligated to send any prior notice to County or the Advisory Management
Committee, and County shall not be entitled to bring any action against Town, with respect to
s
20'1622413
any prudent, good faith activity undertaken by Town to prevent, abate, or mitigate injury to the
Property immediately before, during, or immediately following fire, flood, storm, earth
movement, acts of war, and similar causes beyond the control of Town. Town will promptly
inform County of injury to the Property caused by such events or actions. .
H Remainder of Page Intentionally Left Blank H
IN WITNESS WHEREOF, this Restrictive Covenant is hereby executed as of the date first
written above.
TOWN OF GYPSUM:
Town of Gypsum, a home rule municipal corporation,
by and through its Town Manager
B y.-
fielf6hroll, Town Manager
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before ine thist day o M P.
2016, by Jeff Shroll, Town Manager for the Town of Gypsum, a home rule municipality.
Witness my band and official seal.
My commission expires:-')D°xj
'lracle & "ce
NOTARY PUBLIC
STATE OF•COLiNAOo
MYCQMmlaalonexpires 1VA=20
L=2012407000
201622413
No ry Public
10
EAGLE COUNTY:
Eagle County, Colorado
By and ugh its d of Co Com issioners
By:
Ka y Ch dler--Henry, CommissionerJ�/
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this day of (Y b
2016, by Kathy Chandler -Henry, Commissioner, Eagle County Board of County Commissioners.
Witness my hand and official seal.
My commission expires:
Notary Public
AJ. Portice
O.PUBUC
� oMSM
201622413
11
Legal Description of Entire Property
Lot 1, Dry Lake Ranch, according to the plat recorded December 21, 2016 at Reception No.
201621870, County of Eagle, State of Colorado.
f. afsae ensl 1kniinsie Amaes.rin+inn nn 4n11n114nsr nestnl
�cA� eEscalalroN
DRY LAKE RANCH
A Pared of land located in the South 1/2 of Section 18, Township 4 South; Range 65 West of the 6th
Prlmlpal Merldton, County of Eagle. State of Colorado.
Sold Parcelbeing more fully described as follow.•
Beginning at the West 1/4 Corner of said Section 18, a 2,5' Braes Cap, from which the Southwest Cpmer
of SeeUon 18, a ZS' Brans Cap, bears 500100'00'W, a ditanee of 2650.84', this line being the Basis of
Bearings.
Thence the following seven (7) courses:
1) S89M9'S2'E along the East—West 1/4 Line of Section 18, a ifstance of 3953.96' to the East 1/16
C—C Comer of Section 18;
2) departing said 1/4 Line S00'09'3YE along the East Una of the NWI/4 of the SEi/4 of SeeUon 18,
a distance of 132(.72' to the Southeast 1/16 comer of sold Section 18;
3) N8996'03'E along the North Una of said SEi/4 of the SE1/4 of Sectlon 18, a distance of 1319.88'
to the South 1/16 Comer of Section 17 and I&
4) S0011'08'E, along the East Line of sold SEI/4 of the SEi/4 of Section 16, a distance of
1319.15' to the Southeast Caner of said Section 18;
5) S89151WIN, along the South Una of the Southeast 1/4 of Section 18, a distance of 2640.91' to
the South 1/4 Comer of Section 18;
6) 58951'58'W along the South Una of the SWI/4 of Section 18, a distance of 2540.91' to the
Southwest Comer of Section 18;
7) N00ti0'00" W along the West Line of the Southwest 1/4 of Section 18, a distance of 265084' to
the West 1/4 comer of Section 18, and the PejptAf mCginntne:
Excluding the 5 Acre Pirnie Parcel described as follows;
Commencing at the Wast 1/4 Corner of sold Section 1% a 2.5' Brass Cop, from which the Southwest
Comer of Section 18, a 2.5' Brass Cap, boon SOOCO'00'W, 2650.84', this Una being the Basle of Bearings.
Thence SSITIZOt'E, a distance of 2532.09' to the Point of Beginning.
Thence N90'00'00"E. a distance of 421.65'LOB
;
Thence SDDVW00'E. a dletonee of 174.92'
1.99;;
Thence S27'00'00'W, a distance of 456.06'
LIDO);
Thence N90WOVIN, o distance of 265,46'
L101);
Thence NO3TWOO"E, a distance of 583.50'
(L102) to the Point of Beginning,
Containing 275.419* Acres.
(OVERi IWDRYLAM CONSM144MONEASEMfiW&
RE97RICM COVF.IVANMR27011 Loaned in the south
1/2 of Seddon 18,145, R85W. 6th PM County of ftk,
State of C:aiarado
DRAWN BY.' RPK/.AWUI DATE 12-21-16 I
201622 413 mmotr A
KIPP IAM SURVEYIIITG
RANDYMP P.L.S.
P.O. Boz 3154
Eagle, CO 81631
(970) 390-9590
email: mndlr(d11a'pp(andsurm
web: //��alendsttrueutna
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r FOAL DESCRIPTION
DRY LACE RESTRICTIVE COVENANT PORTION
A Restrictive Covenant Portion of land located In the South 1/2 of Section 18, Township 4 South, Range B5 West
of the 6th Principal Meridian, County of Eagle, Stale of Colorado.
Said portion being more fully described as follows:
Commencing at this West 1/4 Comer of cold Section 18, 0 2.5' Brass Cap, from which the Southwest Corner of
Section 18, a 2.5" Braes Cap, bears S00'00'00'W, 2650.84% this line being the Basis of Bearings.,
Thence S89'59'52'E along the East-West 1/4 Une of sold Section 1% a distance of 3953.96' to East 1/16 C -C
Corner of Section 18, a 2' Aluminum Cap (LS 120695) and the Point of Beginning.
Thane the following forty-nine (49) courses:
i) S00109'37'E along the East Line of the NWI/4 of the SEi/4 of Section 18, o disionca of 1320.72' to
the Southeast 1/16 comer of sold Section 18, a 2' Aluminum Cop (IS 120695) (1.51N
2) S1739'28'E, a distance of 149.92' (1.52);
3 517?S'28'E, a distance of 150.17' FLU5,15';
< SOO'41'4YE, a distance of 172.29 5S024040'E, a distance of 176.31
6 S14-&SS'W, a distance of 159.67' (1.58);
S142457'W, a distance of 155.27' (LB*.
8) S3138'31"W, o distance of 210.17' (1.511);
9 5313428'W, a distance of 229.33' to the South Una of the Southeast 1/4 of said Section 18 (LSO);
10 s89'51'511•w, along cold South tine, a distance of 1133.41 (LBO) to the South 1/4 comer of sold
Section 18, a 2.5 Aluminum Cap (1S 120695);
11) S8915118'W, along We South fine of the Southwest 1/4 of said Section 18, a distance of 426.29' (1.61);
12) NB9'44'28•W, a distance of 333.72''(L82);
133) N89170'24'W, a distance of 284.79' (1.83},
14 N83'14'2111% a distance of 294.61' (1.64);
15 053W45W. a distance of 300.54' (1.65):
16 N50'S416'W, a distance of 481.43' (1.66);
17 N3030'13W, a distance of 337.01' (1.67):
l8J N2725'52"W, a distance of 311.76' (Lill);
19 N1450'53'W, o distance of 21228' (Lill);
20 N20'S0'48'W, a distance of 250.36' (L70);
9NOrQ'51"E, a distance of 218.09' (1.71);
N54'58'49"E, a distance of 340.80'L72)i
23 N58108'34'E, a distance of 487.91' 3
24 N59'09'S3'E, o distance of 257.52' L74N
25 N34121 4'W, a distance of 28.98' (1.75) to the East-West 1/4 Una of sold Section 16;
26 S89".19'S2'E, along sold East-West 1/4 Una, a distance of 80.13' (L76);
27 S37511'41"E, o distance of 274.34' (L77);
28 S244t'41"E. a distance of 110.80' (L78)1
29 S404319% a distance of 208.89' (1.79)•
30 540'4245% a e9stones of 170.05 (LBO).
31 S46%'54"E, a distance of 1II&SO �LB1 ;
32 S41137'21'E, a distance of 185.81' 1.82.
33 S35'12'23'E, a distance of 105.07' 1.83 ,
34 54140'5YE, a distance of 110.24' 1.84 ;
S8921VWL a distance of 174.71'
36
S8137WIE4 a distance of 164.72' '166)
37 S63'43'26'C a distance of 140.94' 3;
38 3513111'22E, a distance of 111.28' (1.88), to a point of curvature;
39; along a curve to the left 189.90'. said curve having a radius of 385.00'. a central angle of
28108'44', and a chard bearing of N44'O8'01'E for a distance of.1157.01' (CST
40
41�N30'04E, '40' a distance of 145.70' (1.89), to a point of curvature;
along a curve to the right 85.58'. sold curve having a radius of 465.00', a central angle of
10'39'58•. and a chord bearing of N352437E for a distance of 88.44' (04);
42 N3914WIOT, a distance of 132.41' (L90);
43 N6846'SVE, a distance of 193.82' (LOIN
44 M5728'IM a distance of 179.04' (1.92);
45 N28.45'20'E, a distance of 93.18' (I.93N
46 N10117'28% a distance of 136.47(W4 '
4 N12ro5'39'W, a distance of 104.55' (1.85 ;
48 N22'2'!'3WW, a distance of 108.38' (L96 to the said East-West 1/4 Una;
49) SBO'S9'52'E, along said East-West 1/4 Una, o distance of 592.69' (1.97) to the Potnt of Beginning
Containing 157.5711d; Acres
DRYLAKE
RESTRICTIVE COVENANT PORTION
Located kthe Sduth 1/2 of SmWan Ill; T48, R85W, 61h PM
County of Eagle. State ofCblerodo
�DRAKN B)" RPICIMUI DA IA- ,12-21-16
201622413 rA.l.M.r V
KIPP LAND SURVEYING
RANDYKOPP ALS.
P.O Box 3154
Eagle, CO 81631
(970) 390-9540
email: rurtdp(j!1andsurveying corn
web. k1FAlandsum/evirm.com .
201622413
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Exhibit D
9
MANAGEMENT PLAN
{00568548.DOCX / 3 } 20
x:11 �
DEPICTION OF E"ROVEMENTS
{00568548MOCX / 3 } 21