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. (00568548.DOCX / 3 ) 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. 100568548.DOCX / 3 } 2 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 (00568548.DOCX / 3 ) 3 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, {00568548.DOCX / 3 } 4 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 (00568548.DOCX / 3 ) 5 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. {00568548.DOCX / 3 } 6 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. {00568548.DOCX / 3 } 7 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 {00568548.DOCX / 3 } 8 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 {00568548.DOCX / 3 } 9 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 (00568548.DOCX / 3 ) 10 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 1005685"DOCX / 3 } 11 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; {00568548.DOCX / 3 } 12 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 !7 n m� n � r � r r m ui N � � .f N C49 a W W �p W mm �l w W 3� 3� W 3$� p 3 �al W W OWt ry�l W W eWp7 W IWC QWQ W t�Nyl �pl W �l jal pWp N �1 H 3 p3o M W N � i i 2 Z z 107 z Z Z = Z + N y� J nPN mN �Wp pm �Np �Hp t Z imp Pp �Op �Wp O JCA N Pf J � J 2 � r � r r m •- N � � � N C49 a W W �p W mm �l w W 3� 3� W 3$� N � i i 2 Z z _ z Z Z = Z + N y� J nPN mN �Wp pm �Np �Hp t Imq imp Pp �Op �Wp O JCA N Pf J � J 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 �R .7 , l< .SOS' ,Sl vir., h z t � b -s �ltl , bid Nqk p lot s kttt g i � 0 o z Z i� 2D1622413 =""""` LJ ctt� ; �•'I' e� tliy �BO.� .6,G17.010.GVN (.S'JMdW39.� S�(S'Y4i 2D1622413 =""""` LJ 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 Its th p d tl .�ti� r....r.: i • vel ��i / n 1�"�1 � U � pl a iY kit 47f 1A f• L� fi J':"� Y�j'3 '7.r1� 0 %sia 1 Sn'u+ii.'�P:f'� �'�}iy r�r• Atli'' ^ 'Q i�it�. •R11' AN! •Lea f1oJy�`•� ]�' �'�.irtf,`��n'}'�,�. • 4 � ,.'•ry:SYS �V ii if f�g:t�iS SS'� i_•} y 3 • 1 act. ARi �;.. •ytT��•,ir�1iG,� l�l'•r�.i � ti��K�i;,�.7•,i�'• •u.�ii i- � N rt ikr�.rI }C u•y �••�i}f 4:r• t'•ilyifi � � ,l$; w C A i 1'•. Y''. f , e• ri •R Q ic1 •.F}t Si�,•1' rjF -3 j� y�, Vyijjj{{ O 0 1` p) (`•� ��•.1��� �A+ . �7ir�,3i•.�� � ilr�1'f.�i�' �'yy'lllyygper c a i',•�.k� ?�r�`t�,' iy ([�� `� ��.' iL 'JM' o j "• O r Zj: (it• Ne. I IN 3 IS'r p N� Il3 � m � O N pp G1 Exhibit D 9 MANAGEMENT PLAN {00568548.DOCX / 3 } 20 x:11 � DEPICTION OF E"ROVEMENTS {00568548MOCX / 3 } 21