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HomeMy WebLinkAboutC25-071 Pitkin County and Aspen Valley Land Trust_Three Meadows Ranch Funding AgreementFUNDING AGREEMENT BETWEEN EAGLE COUNTY, COLORADO, PITKIN COUNTY, COLORADO, AND ASPEN VALLEY LAND TRUST RELATED TO THE THREE MEADOWS RANCH CONSERVATION PROJECT THIS AGREEMENT (“Agreement”) is made this 4th day of February 2025, by and between Eagle County, Colorado, a body corporate and politic (“Eagle County”), the Board of County Commissioners of Pitkin County, Colorado, a body corporate and politic (“Pitkin County”), and Aspen Valley Land Trust, a Colorado nonprofit corporation (“AVLT”). Eagle County, Pitkin County, and AVLT shall collectively be referred to as the “Parties” in this Agreement and each individually as a “Party.” RECITALS WHEREAS, AVLT Special Projects, LLC, a Colorado limited liability company, is the party buyer to a contract dated December 19, 2024, for purchase of the property generally known as Three Meadows Ranch (the “Contract”) located in Eagle County, Colorado. A copy of the Contract is appended hereto as Exhibit 1 and is made a part of this Agreement by this reference; and WHEREAS, the Three Meadows Ranch property (the “Property” or “Three Meadows Ranch”) consists of approximately 4,250 acres, more or less, and the Contract includes the purchase of all real property and appurtenances, including but not limited to: (i) any and all buildings, improvements, personal property, and fixtures situated thereon; (ii) any and all crops and timber growing thereon; (iii) any and all surface or subsurface sand, gravel, oil, gas, mineral geothermal, or mineral rights and any stockpiled sand, gravel or minerals acquired or to be acquired by AVLT thereon; (iv) water rights as well as well, spring, reservoir, storage, domestic (including municipal taps), irrigation, irrigation equipment and facilities, sub-irrigation, livestock water, and ditch rights of any type, including all shares or certificates of any type in ditch or water delivery companies or associations acquired or to be acquired by AVLT; and (v) all other surface and subsurface rights, any and all other permits, hereditaments, easements, recorded rights of access, historic rights of access, incidents, and appurtenances belonging thereto; and WHEREAS, a legal description of the Property is appended to the Contract as Contract Exhibit A and a description of the water rights appurtenant to the Property is appended to the Contract as Contract Exhibit B; and WHEREAS, the purchase price stated in the Contract is TWENTY-SEVEN MILLION SEVEN HUNDRED THOUSAND and 00/100 DOLLARS (“$27,700,000.00”) (the “Purchase Price”). The Contract Closing Date is February 18, 2025 (the “Closing Date”); and WHEREAS, AVLT Special Projects, LLC is a subsidiary of and wholly owned and controlled by AVLT; and, for the purpose of this Agreement, any reference to AVLT or AVLT Special Projects, LLC shall include both entities unless further definition or distinction is expressly provided; and Docusign Envelope ID: 53F6EFB1-8BA2-462B-B658-98484F1BA5E0 2 WHEREAS, the Property is located wholly within Eagle County, Colorado and within the Roaring Fork River Watershed, and were it to be developed at its highest and best economic use, such use would likely have a significant impact on wildlife habitat, scenery, and agricultural resources, all of which otherwise benefit the citizens of Eagle County, Pitkin County, and the State of Colorado; and WHEREAS, the Parties desire to enter into this Agreement to set forth the terms and conditions of their respective funding contributions so that the Parties may protect and preserve the Property, which is otherwise at risk for development, and such preservation will benefit the citizens of Eagle County, Pitkin County, and the State of Colorado; and WHEREAS, in 2002 voters in Eagle County approved Eagle County Referendum 1H establishing earmarked funding for the purpose of acquiring, maintaining, or permanently preserving open space; and WHEREAS, as a result of Referendum lH, Eagle County has established an Open Space Program which acquires and/or protects open space throughout Eagle County, Colorado; and WHEREAS, Eagle County Resolution No. 2016-064 concerning the Open Space Program permits Eagle County to engage in the acquisition, maintenance, or permanent preservation of open space, alone or in association with other entities; and WHEREAS, the voters of Pitkin County and the Board of County Commissioners of Pitkin County, Colorado established the Pitkin County Open Space and Trails Fund in 1990 for the purposes of preserving and providing open space and trails resources, and established an Open Space and Trails Board of Trustees to guide the expenditure of those funds; and WHEREAS, Eagle County and Pitkin County have each determined that AVLT’s purchase of the Property will result in the protection of approximately 4,250 acres of land in Eagle County and the Roaring Fork Watershed and that such protection and conservation of the Property in accordance with the principles set forth in the Agreement will result in significant public benefit; and WHEREAS, Pitkin County and Eagle County have reviewed and approved the Contract, found it adequate for the purpose of acquiring the Property, and, pursuant to this Agreement, intend to contribute to the funding of the purchase of the Property, subject to the satisfaction of the terms and conditions described herein as determined by Pitkin County and Eagle County in their sole discretion pursuant to Paragraph 11 below; and WHEREAS, the Purchase Price including, with limitation, the earnest money deposit, is designated solely for funding the purchase of the Property upon the terms described in the Contract as the same may be modified by mutual agreement of the Parties; and WHEREAS, in consideration of Eagle County’s and Pitkin County’s financial contribution to the Property, the Parties agree to encumber the Propert y with a Restrictive Covenant, at the time of Closing, running to the benefit of Eagle County and Pitkin County to secure the Property from sale or encumbrance, which Restrictive Covenant shall be released upon the satisfaction of the terms and conditions stated therein and in this Agreement; and Docusign Envelope ID: 53F6EFB1-8BA2-462B-B658-98484F1BA5E0 3 WHEREAS, any funding provided by Eagle County and/or Pitkin County under this Agreement shall be used solely for the Purchase Price and solely for expenditures incurred in the stewardship and management of the Property after the Closing Date, subject to the terms and conditions set forth in this Agreement and future appropriations when necessary; and WHEREAS, the Parties agree that the primary conservation value for the Three Meadows acquisition is to preserve, protect, and enhance its significant ecological attributes, including but not limited to preservation of wildlife habitat and scenic views, with the secondary conservation values of managed public access, which may include but are not limited to managed recreational and educational opportunities, as well as agricultural use. AGREEMENT NOW THEREFORE, in consideration of mutual promises and covenants contained in this Agreement, the Parties agree as follows: 1. Incorporation of Recitals. The Recitals above are a material part of this Agreement and are incorporated into this Agreement and are true and correct as of the date of this Agreement, form the basis upon which the Parties negotiated and entered into this Agreement, and reflect the final intent of the Parties with regard to the subject matter of this Agreement. In the event it becomes necessary to interpret any provision of this Agreement, the intent of the Parties, as evidenced by the Recitals, shall be given full effect. 2. Representations and Warranties. a. Eagle County represents and warrants that it has full and lawful authority to enter into and comply with the terms of this Agreement. Eagle County, by its signature below, hereby represents and warrants that its governing body has approved the terms and conditions of this Agreement and that the person signing below on behalf of Eagle County has full authority to do so. b. Pitkin County represents and warrants that it has full and lawful authority to enter into and comply with the terms of this Agreement. Pitkin County, by its signature below, hereby represents and warrants that its governing body has approved the terms and conditions of this Agreement and that the person signing below on behalf of Pitkin County has full authority to do so. c. AVLT is a non-profit corporation organized in accordance with the laws of the State of Colorado and is qualified to hold conservation easements in the State of Colorado. Further, AVLT has full and lawful authority to enter into, and comply with the terms of this Agreement on behalf of itself and AVLT Special Projects, LLC. For the purpose of this Agreement, the rights and obligations of AVLT Special Projects, LLC and AVLT shall be mutual and concurrent and may be enforced by and against either entity. AVLT, by its signature below, hereby represents and warrants that its governing body has approved the terms and conditions of this Agreement and that the person signing below on behalf of AVLT has full authority to do so on its behalf and on behalf of AVLT Special Projects, LLC. Docusign Envelope ID: 53F6EFB1-8BA2-462B-B658-98484F1BA5E0 4 3. Property Interest to be Acquired. a. On the Closing Date, AVLT will acquire a fee simple interest in the Property and its appurtenances pursuant to the Contract and the terms and provisions of this Agreement applicable thereto. Thereafter, AVLT will be the legal owner of the Property, subject to the interest acquired by Eagle County and Pitkin County described below. b. Immediately after becoming the owner of the Property and on the Closing Date, AVLT shall grant and record against the Property a Restrictive Covenant running to the benefit of Eagle County and Pitkin County to secure Eagle County’s interest and Pitkin County’s interest in the Property. A copy of the Restrictive Covenant to be recorded at Closing is appended hereto as Exhibit 2 and the terms of the same are incorporated by this reference into this Agreement. c. Immediately following Closing, if the following described Covenants can be unilaterally and lawfully terminated by AVLT, then AVLT shall terminate and release the Declarations of Private Covenants recorded in the Eagle County Clerk and Recorder’s Office at Book 684, Page 850; Book 695, Page 175; and Book 684, Page 854, which are currently applicable to certain portions of the Property. 4. Acquisition Funding and Transaction Costs. a. Subject to the terms and conditions set forth in this Agreement, at Closing, Eagle County agrees to contribute the sum of TWELVE MILLION FIVE HUNDRED THOUSAND and 00/100 DOLLARS ($12,500,000.00) toward the Purchase Price as well as the acquisition of the Restrictive Covenant described above (the “Eagle County Funds”). Eagle County shall also provide up to TWO HUNDRED FIFTY THOUSAND and 00/100 DOLLARS ($250,000.00) to cover transaction costs. Transaction costs include, but are not limited to, stewardship fees and defense costs, title insurance, baseline reports, mineral remoteness reports, appraisal costs, closing costs, and the like. Transaction costs do not include attorney fees for the other Parties. Eagle County is responsible for delivering the Eagle County Funds to the Title Company for the acquisition of the Property on the Closing Date. b. Subject to the terms and conditions set forth in this Agreement, at Closing, Pitkin County agrees to contribute the sum of SEVEN MILLION SEVEN HUNDRED THOUSAND DOLLARS and 00/100 DOLLARS ($7,700,000.00) toward the Purchase Price of the Property as well as the acquisition of the Restrictive Covenant described above (the “Pitkin County Funds”). Pitkin County is responsible for delivering the Pitkin County Funds to the Title Company for the acquisition of the Property on the Closing Date. Pitkin County shall receive a credit for the FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) earnest money deposit delivered to the title insurance company pursuant to the terms of the Contract. c. Subject to the terms and conditions set forth in this Agreement, at Closing, AVLT will contribute SEVEN MILLION FIVE HUNDRED THOUSAND DOLLARS and 00/100 DOLLARS ($7,500,000.00) (the “AVLT Funds”) toward the Purchase Price on the Closing Date. d. The Eagle County Funds, Pitkin County Funds, and AVLT Funds are referred to Docusign Envelope ID: 53F6EFB1-8BA2-462B-B658-98484F1BA5E0 5 collectively in this Agreement as the “Purchase Funds.” 5. Ownership and Management of the Property Subsequent to Closing. a. Following Closing, and subject to Paragraph 7.b. below, AVLT will own the Property and hold title to the same during an interim three (3) year period, which shall commence on the Closing Date and terminate on a date three (3) years from that date, unless mutually extended by all the Parties through a written amendment to this Agreement (the “Planning Phase”). b. During the Planning Phase, no Party to this Agreement may sell or alienate its property interest in the Property or any share of portion thereof and no Party shall record or otherwise cause any encumbrances (other than the Restrictive Covenant running to the Benefit of Eagle County and Pitkin County) or liens affecting the Property without the unanimous prior written agreement of all Parties to this Agreement. c. During the Planning Phase, no Party to this Agreement shall cause or allow any work or activity to occur on the Property, including without limitation, any work or activity that might alter the physical condition of the Propert y or its use, without the unanimous prior written agreement of all Parties to this Agreement. The foregoing limitation shall not include minor items such as fence and ditch maintenance. 6. Decision Making by Unanimous Consent. The Parties agree and acknowledge that material to this Agreement is the requirement that all decisions related to the Property during the Planning Phase and/or resulting therefrom (i.e. a decision to convey the property or amend the initial ownership structure as contemplated in Section 7 below), including but not limited to decisions related to dispossession, alienation, management, and improvement to the Property, shall be made in good faith by unanimous written consent of the Parties through an amendment or addendum to this Agreement, unless a different method of decision making is specifically and expressly stated as it relates to a distinct and discreet item. 7. Planning Phase and Dispossession. a. During the Planning Phase, the Parties will cooperate in good faith to evaluate long- term ownership and conservation options for the Property as set forth below in this Paragraph 7. b. It is the intent of the Parties that the Planning Phase shall result in the creation and encumbrance of the Property with a voluntary, perpetual conservation easement. The conservation easement’s primary conservation value shall be protection, preservation, and enhancement of the Property’s significant ecological attributes, including but not limited to preservation of wildlife habitat and scenic views. Secondary to the primary conservation value stated in the preceding sentence shall be conservation values of managed public access, which public access may include but is not limited to managed recreation and educational opportunities, as well as agricultural use of the Property. c. During the Planning Phase, as well as in any future conservation easement, managed public access and agricultural use will be allowed only after careful evaluation by the Parties to ensure such uses are appropriate for the Property and are in full alignment with and do Docusign Envelope ID: 53F6EFB1-8BA2-462B-B658-98484F1BA5E0 6 not negatively impact the primary conservation value of preserving, protecting, and enhancing the Property’s ecological attributes. To accomplish this careful evaluation, the Parties agree to adhere to and be guided by the Pitkin County Biodiversity Plan, the Eagle County Open Space Plan, AVLT’s strategic conservation plan, the Watershed Biodiversity Initiative’s and Colorado Natural Heritage Program’s biodiversity studies of the Property and surrounding area, and subsequent and relevant property documents (e.g., conservation easements, baseline reports, and management plans). For the avoidance of doubt, if the secondary conservation values of public access and agricultural use are demonstratively in conflict with the primary ecological value of the Property, the Parties will prioritize protection of the primary conservation value. d. Instead of disposing of the Property pursuant to Paragraph 7. b. and c. or in addition or conjunction with the same, the Parties may agree to not encumber the Property or a portion of the Property with a conservation easement if the Property or a portion of the Property will be held by one or both of the Counties in conformance with their respective Open Space Programs. Additionally, the Property or a portion of the Property may be conveyed to a State or Federal agency (namely Colorado Parks and Wildlife, BLM, or US Forest Service), preferably subject to a conservation easement or similar encumbrance having the effect of protecting the Property’s conservation values. In the event that one of the aforementioned State or Federal agencies will not accept encumbered properties, the Parties may only convey the Property to such an agency if the Parties are reasonably certain such conveyance will further and substantially protect all of the conservation values set forth in this Agreement. e. As described above and further elaborated here, in the event that the Planning Phase expires without the Parties selecting and pursuing a means of dispossession and ownership for the Property or the Parties have not mutually agree to extend the Planning Phase, AVLT shall convey the fee simple interest in the Property to Eagle County and Pitkin County subject to any governmental approvals necessary to accept the Property, as co-tenants in proportion to the percentage of each County’s respective funding contributions set forth in Section 4 above (61.88% Eagle County, 38.12% Pitkin County). In the event AVLT conveys the Property to Eagle County and Pitkin County pursuant to this Paragraph, AVLT may voluntarily elect to reserve unto itself a perpetual conservation easement, the terms of which would be mutually agreed to by Eagle County, Pitkin County, and AVLT. f. During the Planning Phase, the Parties agree to work cooperatively in good faith regarding operation, maintenance, and stewardship of the Property, including, without limitation, approval of all costs (holding costs or otherwise) in connection therewith. Pitkin County Open Space and Trails agrees to undertake the foregoing operation, maintenance, and stewardship for one (1) year following the Closing Date and all Parties agree to work together in good faith to agree on the scope of the same. In order to work cooperatively, the Parties agree to develop and enter into a Management Plan for the operation, maintenance, and stewardship of the Property within nine (9) months of the Closing, or as soon as reasonably possible according to a schedule mutually agreed by the Parties. Prior to the creation and adoption of the Management Plan, the Parties shall conduct necessary operations, management, maintenance, and capital improvements to the Property by mutual written agreement. In the absence of such Management Plan, the Parties agree that no Party will take any action or have any services performed with respect to the Property without the prior unanimous written consent of the other Parties. Notwithstanding the foregoing, in the event of imminent harm, physical damage, or other threat to the Property or its Docusign Envelope ID: 53F6EFB1-8BA2-462B-B658-98484F1BA5E0 7 improvements, a Party may take reasonable, unilateral action to prevent waste or harm to the Property. In the event that it is necessary for a Party to take action to protect the Property as described herein, the Party shall immediately notify all Parties to this Agreement, in the manner provided herein. In no circumstance shall the time for such notice, be more than three (3) working days. 8. Release of Restrictive Covenant. Upon conclusion of the Planning Phase, either due to the passage of time or earlier termination by mutual agreement of the Parties, Eagle County and Pitkin County shall release the Restrictive Covenant from the Property prior to sale to a third-party and encumbrance with a Conservation Easement or conveyance of the Property from AVLT to Pitkin and Eagle Counties. 9. Conservation Easement terms and Use of the Property. The Parties agree that any voluntary conservation easement(s) conveyed or retained pursuant to this Agreement shall identify the conservation easement’s primary conservation value as protection, preservation, and enhancement of the Property’s significant ecological attributes, including but not limited to preservation of wildlife habitat and scenic views. Secondary to the primary conservation value stated in the preceding sentence shall be conservation values of managed public access, which public access may include but is not limited to managed recreation and educational opportunities, as well as agricultural use of the Property. Human activities on or related to the Property, including but not limited to, managed public access, education opportunities, and agricultural use shall only be permitted in accord with Paragraphs 7 b. and c. Said voluntary conservation easement(s) may be more restrictive, include additional conservation values, and/or include additional permitted or disallowed uses as may be agreed on by the Parties, resulting from information learned and data collected during the Planning Phase, but shall otherwise be consistent with the Agreement as well as applicable reasonable standards and practices as typified in recent conservation easements acquired individually by the Parties, and the form and content of any conservation easement deeds shall be subject to the unanimous prior written agreement of all Parties to this Agreement. 10. Proceeds from the Sale or Dispossession of the Property. In the event of the sale of all or a portion of the Property, the net proceeds of any such sale to a State, federal, or other third-party buyer of the Property as contemplated in Section 7 above, will be applied proportionally to each party’s initial contribution to the Purchase Price, or as otherwise mutually agreed to in writing by the Parties. 11. Conditions Precedent for Disbursement of Funds on the Closing Date. a. Disbursement of Funds on the Closing Date are contingent upon the following conditions having been satisfied: i. In accord with the due diligence and objection deadlines in the Contract, any contribution of funds by Eagle County, Pitkin County, and AVLT is subject to each Party’s due diligence review and satisfaction of any objections as they relate to the Contract, in each Party’s sole discretion. Such due diligence review may include, without limitation, review of surveys, title commitments, appraisals, environmental inspection reports, Docusign Envelope ID: 53F6EFB1-8BA2-462B-B658-98484F1BA5E0 8 mineral remoteness reviews, and evaluations of any water rights, if any, associated with the Property. Due diligence review will include identification of any leases and other matters affecting the Property as well as all items identified in the title commitment(s). The outcome and results of all due diligence review must be acceptable to all Parties to this Agreement and all matters or information derived as a result of due diligence review which have been accepted by unanimous written agreement by all Parties to this Agreement shall be the “Permitted Exceptions;” ii. Eagle County, Pitkin County, and AVLT shall each provide to the other(s) such documents, materials, or information related to or regarding the Property as each may have in its possession and shall promptly share with each other the results of all due diligence review including all documents or other information in connection therewith if requested by another Party to this Agreement; iii. Notwithstanding the foregoing, each Party is responsible for its own due diligence review in connection with the Contract and this Agreement, and the results of each Party’s due diligence review must be satisfactory to each Party in its sole discretion. If the Contract is terminated, this Agreement shall automatically terminate simultaneously therewith. Each Party has the right terminate its involvement with this Agreement prior to expiration of the various due diligence deadlines or expiration of other provisions of the Contract, which provide for Buyer’s right to terminate the Contract, upon providing written notice to the other Parties. In the event that one of more Parties terminates its involvement in this Agreement, the other Parties may, at their discretion, choose to pursue the Contract and or terminate the same. iv. In the event that it becomes necessary for Pitkin County to terminate the Contract by delivering written notice of termination to the Seller under the Contract, all earnest money shall be promptly returned to Pitkin County. Any default, not caused by Pitkin County, which default causes forfeiture of the earnest money deposit, or claim therefore, shall require that the defaulting Party(s) (if more than one, then jointly and severally) immediately pay Pitkin County the full amount of the earnest money deposit, any additional costs, and reasonable attorneys’ fees, if any, incurred by Pitkin County as a result of the earnest money dispute. Any costs and attorney’s fees payable under this provision shall be limited to those costs and attorney’s fees incurred solely in relation to the earnest money dispute. For avoidance of doubt, if default by Pitkin County causes forfeiture of the earnest money deposit then Pitkin County shall not be entitled to a refund of the earnest money deposit or payment for lost earnest money from Eagle County or AVLT. Any default under the Contract shall constitute a default under his Agreement. This provision shall survive any termination of this Agreement. Docusign Envelope ID: 53F6EFB1-8BA2-462B-B658-98484F1BA5E0 9 12. Review and Approval of Documents. The Parties agree that each Party shall be entitled to review and approve, subject to reasonable objections, the form of the deeds, closing documents, and any applicable conservation easement(s). 13. Dispute Resolution. a. Any dispute, controversy, or claim arising out of or relating to this Agreement or the breach, termination, or validity thereof (“Dispute”) which arises between the Parties shall first be negotiated between appropriate senior representatives of each Party who shall have the authority to resolve the matter. Such representatives shall meet to attempt in good faith to negotiate a resolution of the Dispute, prior to pursuing other available remedies, within ten (10) days of receipt by a Party of written notice of a Dispute. b. In the event that the senior representatives are not successful in resolving the Dispute within thirty (30) days from the date of transmittal of the notice of dispute described above, the Parties shall submit the Dispute to mediation with a mediator selected by the parties. Each Party shall bear its own costs and attorney fees incurred and arising from mediation and shall split mediation cost equally. c. In the event mediation is unsuccessful in resolving the Dispute, any Party may immediately seek enforcement of this Agreement or any of its terms by the District Court, Eagle County, Colorado. 14. Publicity and Property Information. The Parties agree to coordinate and unanimously agree in advance and in writing to the form and content of any publicity with respect to the Property. 15. Audits and Accounting. Except as may otherwise unanimously agreed to in writing by all Parties to this Agreement: (i) each Party shall maintain standard financial accounts, documents, and records relating to the use, management, and operation of the Property; (ii) Each Party’s accounts, documents, and records relating to the Property shall be retained by each Party for not less than seven (7) years following the date of disbursement of Funds, both before and after the Closing Date; (iii) Each Party, or its designated agent, shall have the right, upon reasonable notice to the other Parties, to audit the books and records of the other Party(s) which pertain to the Property, and to the use and disposition of the Funds; and (iv) each Party shall use reasonable and appropriate accounting systems in maintaining the required records hereunder. 16. Inspection. Each Party shall have the right to inspect the Property to ascertain compliance with this Agreement. 17. Remedies Cumulative. Notwithstanding anything to the contrary herein, all remedies under this Agreement are cumulative and may be exercised independently or in combination and are not exclusive to one another or to any other remedies available at law or in equity, including specific performance. 18. No Assignment without Consent. No Party may assign its rights under this Agreement without the unanimous written agreement of all Parties. Docusign Envelope ID: 53F6EFB1-8BA2-462B-B658-98484F1BA5E0 10 19. Severability. If any part, term, or provision of this Agreement is held by a court of competent jurisdiction to be illegal or in conflict with any federal law or law of the State of Colorado, the validity of the remaining portions or provisions shall not be affected, and the rights and obligations of the Parties hereto shall be construed and enforced as if the Agreement did not contain the particular part, term, or provision held to be invalid. 20. Entire Agreement. This Agreement is intended as the complete integration of all understandings between the Parties, constitutes the entire agreement between the Parties hereto, and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Property, all of which are merged in this Agreement. 21. Modification. No provision or term of this Agreement may be amended, modified, revoked, supplemented, waived, or otherwise changed except by written instrument duly executed by all of the Parties hereto. 22. Notice. Any notice required or permitted under this Agreement shall be in writing and shall be provided by electronic delivery to the e-mail addresses set forth below and by one of the following methods (1) hand-delivery or (2) registered or certified mail, postage pre-paid to the mailing addresses set forth below. Each Party by notice sent under this paragraph may change the address to which future notices should be sent. Electronic delivery of notices shall be considered delivered upon receipt of confirmation of delivery on the part of the sender. Nothing contained herein shall be construed to preclude personal service of any notice in the manner prescribed for personal service of a summons or other legal process: Notice to Eagle County: Marcia Gilles Eagle County Open Space Director P.O. Box 850 500 Broadway Eagle, CO 81361 With a copy to: Eagle County Attorney 500 Broadway Post Office Box 850 Eagle, Co 81631 Telephone: 970-328-8685 E-Mail: atty@eaglecounty.us Notice to AVLT: AVLT Special Projects, LLC c/o Suzanne Stephens, Manager 320 Main Street, Suite 204 Carbondale, Colorado 81623 suzanne@avlt.org Docusign Envelope ID: 53F6EFB1-8BA2-462B-B658-98484F1BA5E0 11 Notice to Pitkin County: Board of County Commissioner of Pitkin County Colorado c/o The Pitkin County Attorney’s Office 530 East Main Street, Suite 301 Aspen, Colorado 81611 Email: attorney@pitkincounty.com 23. No Land Use Approvals Imputed to Agreement. Although Eagle County may fund a portion of the acquisition cost for the Property as described in this Agreement, nothing in this Agreement shall be construed to mean that any land use approvals required as a condition of Closing or later desired by the owner of the Property have been given approval by Eagle County in its governmental capacity. Owner of the Property or AVLT, or Pitkin County, as applicable, shall be solely responsible for obtaining Eagle County approvals necessary for the lawful use of the Property. Nothing herein shall be considered pre-approval by Eagle County of the same. Eagle County acknowledges that there are improvements on the Property which do not exist legally and that such improvements are not an impediment to purchase of the Property as contemplated under this Agreement and the Contract nor are they cause for Eagle County to terminate this Agreement and that all Parties will work with Eagle County to rectify violations. 24. Survival. Any right or obligation in this Agreement that, by its terms, exists or is intended to be performed after termination survives the same. 25. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Colorado. Venue and jurisdiction for any dispute hereunder shall lie exclusively in the Eagle County District Court. 26. Interpretation Not Construed Against Drafter. Each Party hereto has reviewed this Agreement and any usual rules of construction requiring that ambiguities are to be resolved against a particular Party shall not be applicable in the construction and interpretation of this Agreement. 27. No Waiver. The failure of any Party to enforce any term or provision hereof shall not be deemed a waiver of such term or right of enforcement as to that breach or any subsequent breach of the same, similar or different nature. No waiver shall be enforceable unless signed by the Party against whom the waiver is sought to be enforced. 28. Relationship of the Parties. Nothing in this Agreement shall be construed to create a joint venture, partnership, or employer/employee relationship between the Parties hereto. 29. Payment of Funds. Funding for the Property is subject to Pitkin County and Eagle County, through their respective Board of County Commissioners, taking all necessary actions to lawfully appropriate the Purchase Funds. Notwithstanding anything to the contrary contained in this Agreement, no payment will be made for any period after December 31st of any calendar year without the written approval in accordance with a budget adopted by the Eagle County Board of County Commissioners in compliance with the provisions of Article 25, Title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. § 29-1-101 et seq.), and the TABOR Docusign Envelope ID: 53F6EFB1-8BA2-462B-B658-98484F1BA5E0 12 Amendment (Colorado Constitution, Article X, Sec. 20). 30. Current Year Obligations. The Parties acknowledge and agree that any payments provided for hereunder or requirements for future appropriations shall constitute only currently budgeted expenditures of Pitkin County and Eagle County. Pitkin County's and Eagle County’s obligations under this Agreement are subject to Pitkin County’s and Eagle County’s annual right to budget and appropriate the sums necessary to provide the services and meet the obligations set forth in this Agreement. No provisions of this Agreement shall constitute a mandatory requirement in any ensuing fiscal year beyond the current fiscal year of Pitkin County and Eagle County. No provision of this Agreement shall be construed or interpreted as creating a multiple fiscal year direct or indirect debt or other financial obligation of Pitkin County or Eagle County within the meaning of any constitutional or statutory debt limitation. This Agreement shall not directly or indirectly obligate Pitkin County or Eagle County to make any payments beyond those appropriated by Pitkin County's and Eagle County’s then current fiscal year. No provisions of this Agreement shall be construed to pledge or create a lien on any class or source of Pitkin County's or Eagle County’s monies, nor shall any provision of this Agreement restrict the future issuance of Pitkin County's or Eagle County’s bonds or create any obligation of payment from any class or source of Pitkin County's or Eagle County monies. 31. Governmental Immunity. The Parties agree and understand that Pitkin County and Eagle County are relying on and do not waive by any provision of this Agreement, the monetary limitations or terms or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, Section 24-10-101, et seq., C.R.S., as from time to time amended, or otherwise available to Pitkin County and Eagle County or any of their officers, agents or employees. Further, nothing in this Agreement shall be construed or interpreted to require or provide for indemnification by Pitkin County or Eagle County for any injury to any person or any property. Nothing in this Agreement shall be construed as a waiver of any right to make any claims under the Colorado Governmental Immunity Act or under this Agreement. 32. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and to their properly qualified successors and assigns. [Signature Pages to Follow] Docusign Envelope ID: 53F6EFB1-8BA2-462B-B658-98484F1BA5E0 13 IN WITNESS WHEREOF, this Agreement is executed and entered into the day and year first above written. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONERS By: ______________________________ Jeanne McQueeney, Chair Attest: By: _________________________________ Stacey Jones Chief Deputy Clerk and Recorder Docusign Envelope ID: 53F6EFB1-8BA2-462B-B658-98484F1BA5E0 14 [Reserved for Pitkin County Signature(s)] Docusign Envelope ID: 53F6EFB1-8BA2-462B-B658-98484F1BA5E0 15 [Reserved for AVLT Signature(s)] Docusign Envelope ID: 53F6EFB1-8BA2-462B-B658-98484F1BA5E0