HomeMy WebLinkAboutR16-105 Open Space Funds - Dry Lake Property - Gypsum Commissioner M41c4N Out moved adoption
of the following Resolution:
BOARD OF COUNTY COMMISSIONERS
COUNTY OF EAGLE,STATE OF COLORADO
RESOLUTION NO. 2016- toe
RESOLUTION APPROVING THE GRANT OF OPEN SPACE FUNDS TOWARDS THE
TOWN OF GYPSUM'S PURCHASE AND PRESERVATION OF THE DRY LAKE
PROPERTY
WHEREAS,on or about March 8, 2016, the Town of Gypsum (hereinafter"Town") entered
into a contract to purchase approximately 275.41 acre property, located approximately 4 miles
north of the Town(hereinafter the"Dry Lake Property"or the"Property"); and
WHEREAS,the Dry Lake Property is depicted on the map attached hereto as Exhibit A and
incorporated herein by this reference; and
WHEREAS, the Town plans to use the approximately 157.67 acres of the Dry Lake Property
depicted in Exhibit A as the"Recreation Portion" for a motorized recreation course along with
associated parking and other recreational improvements (hereinafter"Recreation Property"); and
WHEREAS,Town will encumber Recreation Property with a Restrictive Covenant, enforceable
by Eagle County; and
WHEREAS,Town will convey,and Eagle County agrees to accept, a perpetual conservation
easement on portions of the Dry Lake Property identified in Exhibit A as the"Conservation
Easement Portion"totaling approximately 117.74 acres (herein after"Conservation Easement
Property")to protect open space and scenic qualities; and
WHEREAS, through Eagle County Resolution No. 2016-064, Eagle County established its
Open Space Program which permits the acquisition and/or permanent preservation of Open
Space by Eagle County or the County in partnership with other public or private entities such as
the Town of Gypsum; and
WHEREAS,the Town's purchase of the Dry Lake Property, the preservation of the
Conservation Easement Property and the restriction on the future use of the Recreation Property
shall be collectively referred to herein as the"Project;"and
WHEREAS, Eagle County desires to contribute$650,000 towards the Town of Gypsum's
purchase of the Property and to reimburse the Town up to $50,000 for certain transaction costs
associated with the purchase,placement of the Restrictive Covenant,conveyance of the
Conservation Easement, including the present conditions report,title insurance, minerals
r PPROV:•e TjJ FORM
1 Eagle County Attorney's
By:
Eagle County Commissioners'Office
analysis, environmental review,water rights due diligence, closing costs and the like
(collectively"Transaction Costs"); and
WHEREAS,The Eagle County Open Space Advisory Committee voted unanimously at the
May 9,2016 meeting to recommend the contribution of Eagle County Open Space Funds toward
Project and associated Transaction Costs.
NOW,THEREFORE BE IT RESOLVED by the Board of County Commissioners of the
County of Eagle, State of Colorado:
THAT,the Board of County Commissioners hereby specifically authorizes the expenditure of up
to Six Hundred and Fifty Thousand($650,000) from the Eagle County Open Space Fund for the
Project,with and additional amount,not to exceed Fifty.Thousand Dollars($50,000)towards
Transaction Costs.
THAT, such expenditure of Open Space Funds shall be subject to County's satisfactory due
diligence inspection of the Property and review and approval of the following documents,which
are attached hereto (without exhibits)and incorporated herein by reference:
1. Exhibit B- Deed of Conservation Easement
2. Exhibit C- Restrictive Covenant
THAT,the Board of County Commissioners authorizes any Commissioner to execute on its
behalf any and all necessary documents, instruments, papers or other forms necessary for
completion of the Project defined herein.
THAT, the Board of County Commissioners finds, determines and declares that this Resolution
is necessary for the public health, safety and welfare of the citizens of Eagle County, State of
Colorado.
1/Remainder of Page Intentionally Left Blank 1/
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MOVED, READ AND ADOPTED by the Board of County Commissioners of the County of
Eagle, State of Colorado, at its regular meeting held the 20th day of December, 2016.
COUNTY OF EAGLE, STATE OF
COLORADO, By and Through Its
6 x'14 co BOARD OF COUNTY COMMISSIONERS
ATTEST: ts,
•
4,414- U 6121k-4— • OLOAP BY:
Clerk to the Board of J ne McQueene�
County Com issioners C air
Jill . Ryan
Co* issioner
Kathy Ch,/dler-Henry
Commissioner
Commissioner seconded adoption of the foregoing resolution. The roll
having been called, the vote was as follows:
Commissioner McQueeney 1/1y. fr
Commissioner Ryan
Commissioner Chandler-Henry 14 4
This resolution passed by + vote of the Board of County Commissioners of
the County of Eagle, State of Colorado
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After recording,please return to:
Eagle County
Attn: Toby Sprunk,Director of Open Space
P.O.Box 850
Eagle,Colorado 81631
Any time the Property is transferred by Grantor to any third party, Grantor shall pay a transfer
fee of$500 to Grantee and notify Grantee pursuant to the requirements of Section 11 of this
Deed.
DEED OF CONSERVATION EASEMENT
Dry Lake Property
THIS DEED OF CONSERVATION EASEMENT ("Deed") is granted on this day
of , 2016, by the TOWN OF GYPSUM, COLORADO, a Colorado, home rule
Municipal Corporation,whose address is P.O. Box 130, Gypsum, Colorado 81637 ("Grantor")
to EAGLE COUNTY, COLORADO, a body corporate and politic,whose address is P.O. Box
850, Eagle, Colorado 81631 ("Grantee"). (Grantor and Grantee are collectively referred to
herein as the "Parties").
RECITALS
A. Description of Property. Grantor is the owner of the fee simple interest in
approximately 117.748 acres of real property located in Eagle County, Colorado,more
particularly described in Exhibit A and depicted in Exhibit B,both attached hereto and made a
part hereof(the "Property").
B. Conservation Purposes. According to I.R.C. § 170(h)(4)(A) and Treas. Reg. §
1.170A-14(d),the conservation purposes of a qualified conservation contribution must include
one or more of the following: (1)to preserve land for outdoor recreation by or education of the
general public; (2)to protect relatively natural habitat of fish, wildlife or plants; (3)to preserve
open space; and(4)to preserve historically important land or structures. The conservation
purposes set forth in this Recital B and referred to hereafter in this Deed are collectively referred
to as the "Conservation Values."
The Conservation Values of the Property are as follows:
1) Open Space. [Treas. Reg. § 1.170A-14(d)(4)] The Property qualifies as
open space because it is being preserved for the scenic enjoyment of the general public
and pursuant to a clearly delineated federal, state or local governmental conservation
policy and will yield a significant public benefit.
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a. Scenic Enjoyment. The Property's meadows and woodlands contribute to the
scenic character, openness, and variety of the local landscape. The Property is
visible from Trail Gulch Road, and from surrounding federal land. The road
and surrounding public lands are utilized year-round by citizens of the Town
of Gypsum, Eagle County, and the State of Colorado. Conservation of the
Property will provide significant public benefit,because development of the
property into residential parcels would likely lead to or would contribute to
the degradation of the scenic character of the area.
b. Significant Public Benefit. There is a foreseeable trend of urbanization and
rural subdivision development in the vicinity of the Property in the near future
in the Town of Gypsum and the surrounding areas within Eagle County. There
is a strong likelihood that development of the Property would lead to or
contribute to degradation of the scenic and natural character of the area.
c. Relatively Natural Habitat._The CE Parcels of the Dry Lake Property
support characteristics of relatively natural habitat delineated at Treas. Reg.
§1.170A-14(d)(3). The CE Parcels feature sagebrush shrublands,pinyon-
juniper woodlands, and meadows that provide forage, cover,breeding habitat,
and migration corridors for a variety of wildlife species, including migratory
songbirds,raptors, small mammals, and big game. The CE provides Colorado
Parks and Wildlife(CPW)-mapped summer range, winter range, and severe
winter range for elk, winter range for mule deer, and overall range for black
bear and mountain lion. These big game species contribute significantly to the
biodiversity and the region and to the economy through hunting revenues. The
Eagle County Comprehensive Plan states that the well-being of wildlife
species of economic importance should be protected, and that development in
areas critical to the continued well-being of Eagle County's wildlife
populations should not be allowed.
d. Open space. The CE Parcels possess the characteristics of open space
delineated at Treas. Reg. §1.170A-14(d)(4) in that their preservation will
provide scenic enjoyment to the general public, is pursuant to clearly
delineated public policies, and will yield a significant public benefit. The CE
Parcels are in an undeveloped and natural condition, featuring a mosaic of
natural vegetation communities across varied topography, and are surrounded
by undeveloped public lands administered by BLM. As such,the CE Parcels
contribute to the scenic character, openness, and variety of the local natural
landscape, and are visible to the public from surrounding BLM lands and Trail
Gulch Road in the immediate area. Under the conservation easement,the CE
Parcels will remain in relatively natural condition,providing an open space
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buffer between adjoining BLM lands and recreational development/activity
on the Restrictive Covenant Parcel of the Dry Lake Property. Preservation of
open space, including scenic lands, is supported by state and local
governmental policies, and brings significant benefit to the public,because
development of the CE Parcels would likely lead to or would contribute to the
degradation of the scenic character of the area. The Eagle County
Comprehensive Plan and Eagle County Board of County Commissioners
Resolution 2004-015 support the preservation of scenic open space using
conservation easements.
These Conservation Values are of great importance to Grantor, Grantee, and the residents
of the Town of Gypsum, Eagle County, and the State of Colorado. It should also be noted that
the terms of this Easement(defined below) do not permit a degree of intrusion or future
development that would interfere with the Conservation Values.
C. State Policy Concerning Conservation Easements.
1) C.R.S. § 33-1-101 provides in relevant part that "it is the policy of the
state of Colorado that the wildlife and their environment are to be protected,preserved,
enhanced, and managed for the use,benefit, and enjoyment of the people of this state and
its visitors."
2) C.R.S. § 38-30.5-102 provides for the creation of conservation easements
to maintain land "in a natural, scenic, or open condition, or for wildlife habitat, or for
agricultural,horticultural,wetlands, recreational, forest or other use or condition
consistent with the protection of open land, environmental quality or life sustaining
ecological diversity. . ."
3) The Colorado Department of Transportation statutes (C.R.S. § 43-1-401,
et seq.)provide that the "preservation and enhancement of the natural and scenic beauty
of this state" are of substantial state interest.
4) C.R.S. § 33-10-101 provides "It is the policy of the state of Colorado that
the natural, scenic, scientific, and outdoor recreation areas of this state are to be
protected,preserved, enhanced, and managed for the use,benefit, and enjoyment of the
people of this state and visitors of this state."
D. Other Supporting Government Policy.
1) Eagle County Resolution No. 2002-123 provides for the creation of an
open space mill levy for the purpose of acquiring, maintaining, or permanently preserving
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open space to preserve wildlife habitat,protect working farms and ranches, conserve
scenic landscapes and vistas,protect wetlands and floodplains, or provide public access
points to rivers and streams.
2) Eagle County Resolution No. 2016-064 establishes that Eagle County is
dedicated to preservation through its open space program of "wildlife habitat or
migration routes; working farms and ranches; scenic landscapes and vistas; wetlands,
floodplains or other riparian habitat"within and throughout Eagle County.
3) The Eagle County Comprehensive Plan states that: "Eagle County is a
place where natural ecosystems are preserved and maintained in order to assure the health
and wellbeing of local wildlife populations."
4) The Eagle County Comprehensive Plan states that: "The integrity, quality
and interconnected nature of critical wildlife habitat in Eagle County should be
preserved."
5) The Eagle County Comprehensive Plan states that: "A variety of
approaches should be utilized to preserve land as open space"including conservation
easements.
E. Grantee Organization. Grantee is a tax exempt government organization.
F. County Funding. Grantor's purchase of this Easement(defined below)was
funded by the Grantee through the Eagle County Open Space Program.
G. Documentation of Present Conditions. In order to document the condition of
the Property as of the date of this Deed, a report has been prepared by Rare Earth Science, LLC
and dated (the"Baseline Report"). The Baseline Report documents the
Conservation Values and the characteristics, current use, and status of improvements on and
development of the Property. Grantor and Grantee have viewed the Property at the time of the
transfer of this Deed and each acknowledges that the Baseline Report is an accurate
representation of the Property at the time of the transfer. The Baseline Report has been provided
to both Parties and will be used by Grantee to assure that any future changes in the use of the
Property will be consistent with the terms of this Deed. However, the Baseline Report is not
intended to preclude the use of other evidence to establish the condition of the Property as of the
date of this Deed.
NOW,THEREFORE, in consideration of the recitals set forth above, incorporated herein
by reference, and the mutual covenants, terms, conditions, and restrictions contained herein, and
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pursuant to the laws of the State of Colorado, Grantor voluntarily grants and conveys to Grantee
and Grantee voluntarily accepts, a perpetual conservation easement in gross ("Easement"), an
immediately vested interest in real property defined by C.R.S. §§ 38-30.5-101, et seq., and of the
nature and character described in this Deed, for the purpose of preserving and protecting the
Conservation Values in perpetuity, subject to, and without affecting, any currently-existing
rights, if any, of third parties or the United States, encumbering the Property, under Federal law,
Colorado statutory law or common law ("Third-Party Rights").
1. Purpose. The purpose of this Easement is to preserve and protect the Conservation
Values in perpetuity in accordance with I.R.C. § 170(h),Treas. Reg. § 1.170A-14, and
C.R.S. § 38-30.5-101, et seq. ("Purpose"). The Parties intend to permit acts on and uses
of the Property that are consistent with the Purpose and not expressly prohibited by this
Deed and to restrict or prohibit acts on and uses of the Property that are not consistent
with the Purpose. In this Deed, "consistent with the Purpose" shall mean acts on and uses
of the Property that have a positive impact,neutral impact, or no impact on the
Conservation Values as determined by Grantee in its sole discretion. This Deed sets forth
certain uses and activities that are expressly permitted and consistent with the Purpose,
but subject to specified qualifications, conditions, and requirements of, and procedures
for,prior notice to or approval of Grantee. Nothing in this Deed is intended to compel a
specific act or use of the Property other than the preservation and protection of the
Conservation Values.
2. Rights of Grantee. To accomplish the Purpose of this Easement, this Deed conveys the
following rights to Grantee, its employees and its representatives:
a. To preserve and protect the Conservation Values;
b. To enter upon the Property at reasonable times to monitor Grantor's compliance
with and otherwise enforce the terms of this Deed;provided that,prior to such
entry, Grantee shall first provide reasonable notice to Grantor, and Grantee shall
not unreasonably interfere with Grantor's use and quiet enjoyment of the Property;
c. To prevent any activity on or use of the Property that is inconsistent with the
Purpose of this Easement, Grantee may require the restoration of such areas or
features of the Property that are damaged by an inconsistent activity or use, all as
more fully set forth herein;
d. To enforce the terms and provisions of this Deed; and
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e. To place signs on the Property that identify the land as being protected by this
Deed,the size,number, and location of which signs are subject to Grantor's
reasonable approval; and
f. All Development Rights as defined in Section 24 (Development Rights), except
as specifically reserved by Grantor herein.
Nothing in this Section 2 shall preclude the right of Grantee to enforce the preservation
and protection of the Conservation Values of the Property, or any other provision of this
Deed.
3. Rights Retained by Grantor. Grantor retains the right to perform any act on or use of the
Property that is not prohibited or restricted by this Deed,provided that such acts or uses
are consistent with the Purpose.
4. Management Plan. Grantor and Grantee have prepared and mutually agreed to a land
management plan (the"Management Plan" or the"Plan"), a copy of which will be kept
on file in the offices of Grantor and Grantee. The Property shall be operated and
managed in accordance with the Management Plan or as otherwise set forth in this Deed.
Grantor and Grantee shall review the Management Plan annually at the time of Grantee's
monitoring of the Property, and the Plan shall be amended if determined necessary by
either Party. If Grantor intends to undertake any activities not expressly permitted by this
Deed or addressed in a current Management Plan, Grantor shall not undertake such
activities unless and until Grantor has first prepared, and Grantee has approved, an
amendment to the Management Plan. Any amendment to the Management Plan shall be
reviewed by Grantee, and shall not be effective unless and until approved by Grantee in
accordance with Sections 17 (Grantor's Notice) and 18 (Grantee's Approval) of this
Deed.
5. Property Improvements. Improvements existing as of the date of this Deed are
permitted. The installation,placement or construction of any other improvement is
prohibited unless expressly permitted by this Section 5.
a. Existing Improvements. At the time of granting of this Deed, there are no
improvements on the Property.
b. Road Construction and Paving. No new roads or paving are permitted on any
portion of the Property.
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c. Fences. Grantor may maintain,repair, replace or remove existing fences.
Grantor may construct, maintain,repair and replace new fences anywhere on the
Property,provided the location and design of such fences are wildlife friendly.
d. Utility Improvements. Grantor's existing utility improvements, if any, including
but not limited to: (i) electric power poles, transformers and power lines; and(ii)
telephone and communications towers,poles, and lines; and(iii) gas lines
("Utility Improvements"), may be maintained, repaired or replaced with an
improvement of similar size and type at their current locations on the Property
without further permission of Grantee. The construction,maintenance, repair and
replacement of renewable energy generating systems including,but not limited to,
wind, solar, geothermal or hydroelectric, solely for uses permitted on the Property
is permitted provided that such activity is consistent with the Purpose (also,
"Utility Improvements"). Grantor may install Utility Improvements on the
Property with a Road and underground, or may permit the installation of new
Utility Improvements for service to adjacent land provided such Utility
Improvements are installed underground. Except as provided in the foregoing
sentences, Grantor shall not install,place, construct, or enlarge any other new
Utility Improvements without Grantee's approval pursuant to Sections 17
(Grantor Notice) and 18 (Grantee's Approval) of this Deed. Following the
maintenance, repair, replacement, enlargement or construction of any Utility
Improvements by Grantor, Grantor shall promptly restore and re-vegetate any
disturbed area to a condition consistent with the Purpose. Any easement, right of
way or other interest granted to a third party by Grantor or otherwise reserved by
Grantor to be used for Utility Improvements is subject to Section 7.g(Easements,
Rights of Way or Other Interests)of this Deed.
e. Signs. Grantor may place and maintain interpretive and directional signs
provided such signs do not exceed four(4) square feet. Grantor may place larger
signs on the Property with Grantee's approval pursuant to Sections 17 (Grantor's
Notice) and 18 (Grantee's Approval).
f. Trails. Grantor shall not maintain, construct or establish any Trail on the
Property unless approved by Grantee pursuant to Sections 17 (Grantor's Notice)
and 18 (Grantee's Approval) of this Deed. The surface of the Trails shall be dirt,
gravel, rock, or other natural surface, the width of any Trails shall not exceed six
(6) feet, and the Trails may include railings and steps. Grantor reserves the right
to make improvements to the Trails and allow use of the Trails as may be required
under the law to comply with 42 U.S.C. §§12101 et seq.
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6. Resource Management. Grantor recognizes the importance of good resource
management and stewardship to preserve and protect the Conservation Values. To this
end,Grantor shall conduct the following uses of the Property in accordance with the
provisions below. If Grantee believes any resource management practice(s) are not
consistent with the Purpose, Grantee, in addition to all of its rights under this Deed,may
request that the Parties consult with a mutually agreed upon resource management
professional with a mutually agreed upon fee for services. This professional will provide
written recommendations for said resource management practice(s) and Grantor shall
follow the resource management professional's reasonable recommendations, only after
Grantor and Grantee have jointly determined that said recommendations are consistent
with the Purpose. Grantor shall pay the costs for such consultation, including any fees
for the resource management professional.
a. Motor Vehicles. Grantor, and any other entity or person Grantor authorizes, may
use motorized vehicles, including without limitation all-terrain vehicles and
agricultural and construction vehicles (i) on any Roads, and(ii) on any portion of
the Property that is not a Road,provided that such vehicles shall be used only for
resource management,weed control, and habitat restoration. Notwithstanding the
foregoing, Grantor shall have the right to permit motorized access on the Trails in
order to comply with 42 U.S.C. §§ 12101 et seq. Any portion of the Property
disturbed due to the use of motor vehicles shall be restored to a condition as close
to its original condition as reasonably practicable.
a. Relatively Natural Habitat Grantor may conduct major habitat management
activities such as chaining juniper or sagebrush, restoring habitat, and conducting
prescribed bums in accordance with the Management Plan.
b. Timber. On a limited and localized basis, Grantor may cut or prune trees, shrubs
and other vegetation on the Property to control insects and disease, to control
invasive non-native species, to prevent personal injury and Property damage.
Grantor may conduct tree thinning activities to mitigate forest fires, and to
maintain a healthy ecosystem on the Property in accordance with the Management
Plan. Commercial logging is prohibited. Large-scale alteration or removal of
native trees, shrubs and other vegetation from the Property may only occur upon
agreement of the Parties. Re-vegetation of the Property including planting of
shrubs and trees is permitted in a manner consistent with the Purpose.
c. Recreation. Grantor may undertake, or permit members of the public to
undertake passive,non-motorized recreation on the Property, including,but not
limited to, wildlife watching,hiking,biking, and hunting in accordance with the
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regulations as set forth by the Colorado Division of Parks and Wildlife, and
snowshoeing and cross-country skiing, provided they are undertaken in
accordance with the Management Plan. Notwithstanding the foregoing, Grantor
may allow motorized access in the manner otherwise permitted in Section 5 and
Section 6.a of this Deed.
d. Weeds. The Parties recognize the potential negative impact of noxious weeds
and invasive plant species on the Conservation Values. Grantor shall manage
noxious weeds and invasive plant species in accordance with the Management
Plan. Grantee has no responsibility for the management of noxious weeds and
invasive plant species.
e. Water Rights. No water rights are encumbered by this Easement.
f. Special Events. Grantor also reserves the right to conduct special events on the
Property,provided such special events are approved by Grantee as part of the
Management Plan or are otherwise approved by Grantee pursuant to Sections 17
(Grantor's Notice) and 18 (Grantee's Approval) of this Deed, and provided
Grantor conducts such special events in a manner that minimizes damage to the
Conservation Values and promptly and diligently re-vegetates any disturbed areas
with native seed and/or vegetation.
g. Public Access. Nothing contained herein shall be construed as affording the
public access to any portion of the Property. The Parties acknowledge that
Grantor reserves the right to permit public access to the Property, in accordance
with the Management Plan, for use by the public for purposes permitted by this
Deed.
7. Restricted Practices.
a. Subdivision. Grantor and Grantee agree that the division, subdivision or de facto
subdivision of the entire 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. At
all times Grantor shall own and convey the Property as a single parcel which shall
be subject to the terms and conditions of this Deed. Grantor may own the
Property by joint tenancy or tenancy in common; provided, however,that Grantor
shall not undertake any legal proceeding to partition, subdivide or divide in any
manner such undivided interests in the Property.
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b. Surface Disturbance. Except as otherwise permitted by this Deed, Grantor shall
not alter the surface of the land, including without limitation,moving, excavating
or removing soil, sand, gravel,rock,peat or sod,unless such alteration is
associated with permitted acts on and uses of the Property and is consistent with
the Purpose.
c. Commercial or Industrial Activity. Grantor shall not conduct industrial uses of
the Property. Grantor may conduct commercial uses on the Property with
Grantee's approval pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's
Approval) of this Deed.
d. Feed Lot. Grantor shall not establish or maintain a feed lot. For purposes of this
Deed, "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 for market.
e. Trash. Grantor may not allow the dumping or accumulation any kind of trash,
sludge, or refuse on the Property, except for trash contained within wildlife
resistant trash containers.
f. Hazardous Materials. Grantor may use agri-chemicals on the Property in
accordance with all applicable federal, state or local laws. Otherwise, the
treatment,permanent storage, disposal or release of hazardous materials on, from
or under the Property is prohibited. For the purposes stated herein,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
Deed to the contrary, this prohibition does not impose any liability on Grantee for
hazardous materials,nor does it make Grantee an owner of the Property,nor does
it permit or require Grantee to control any use of the Property that may result in
the treatment, storage, disposal or release of hazardous materials within the
meaning of the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended ("CERCLA").
g. Easements,Rights of Way or Other Interests. Except as otherwise permitted in
this Deed, the conveyance or modification of an easement, right of way, or other
similar interest is prohibited without Grantee's approval pursuant to Sections 17
(Grantor Notice) and 18 (Grantee's Approval) of this Deed.
h. Other Restricted Uses. Grantor shall not construct or establish golf courses, sod
farms, athletic fields, shooting ranges, helicopter pads, and airstrips.
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Telecommunications Facilities. Grantor shall not erect, construct, install,
relocate, or use a communication facility, telecommunication facility,network
element, telecommunication equipment, or any other equipment or material that
may be used for telecommunications or to provide telecommunication services (as
such terms are defined in The Federal Telecommunications Act of 1996), without
Grantee's approval pursuant to Sections 17 (Grantor Notice) and 18 (Grantee's
Approval) of this Deed.
j. Wildfire. In the event of a wildfire, any and all methods of extinguishing the fire
are permissible. Also, in the event of a wildfire, the Property is available for
staging of fire activities and camping for firefighters depending on the severity of
an event.
k. Mining. (1) The exploration, mining, or extraction of minerals, oil, gas, or
other hydrocarbons, soils, sands, gravel, rock, or other materials ("Minerals") on
or below the surface of the Property by Grantor is prohibited. Grantor, its heirs,
successors, transferees or assigns shall not transfer, lease or otherwise separate the
soil, sand, gravel,rock, oil,natural gas, fuel or any other mineral substance from
the Property. A mineral assessment report was completed by Rare Earth Science,
LLC dated July 8, 2016. The report concludes that, as of the date of the report, the
probability of extraction or removal of minerals from the Property by any surface
mining method is so remote as to be negligible.
(1) Notwithstanding any of the foregoing to the contrary, soil, sand,
gravel or rock may be extracted upon written notice to but without further
permission from Grantee, so long as such extraction is solely for use on the
Property for non-commercial purposes, (i) is in conjunction with activities
permitted herein, (ii) is accomplished in a manner which is consistent with the
Purpose of this Easement, and(iii) does not substantially diminish or impair the
Conservation Values. Any such extraction shall be limited to an area less than
one-tenth acre in size at any given time. Any area which is disturbed by
extraction must be re-vegetated and restored to a natural condition promptly after
completion of extraction.
(2) For purposes stated herein the term"Mineral Document" shall
mean any lease, surface use agreement,no-surface occupancy agreement, or any
other instrument related to Minerals associated with the Property, and the
provisions of which may permit activities that may have a current or future
impact on the surface of the Property. To the extent Grantor does not own all of
11
the Minerals located on,under, or in the Property or otherwise associated with
the Property the following shall apply:
(i) Grantor agrees that by granting this Easement to Grantee, it
has granted to Grantee a portion of its rights as owner of the Property on
which the exploration, development,mining, extraction, or removal of
any Minerals may be conducted. Grantor shall provide notice to Grantee
within ten(10) days of any contact,whether verbal or written, from a
third party Mineral owner, lessee or operator.
(ii) Grantor shall not enter into any Mineral Document without
notice to (Section 17) and Grantee's Approval pursuant to Section 18 of
this Deed to ensure that said document is consistent with the Purpose and
this Deed, and Grantee shall be a party to any such agreement, if Grantee
chooses, in its sole discretion.
(iii) Grantor affirmatively grants to Grantee the right, but not
the obligation, to object to, on Grantor's behalf, any administrative
application,permit or other regulatory approval to be granted by and
federal, state or local government body or agency, including any permit
conditions in accordance with state law and regulations, and Grantor shall
not grant its approval or acceptance of any such application,permit,
permit conditions or other regulatory approval without notice to (Section
17) and Grantee's Approval pursuant to Section 18 of this Deed.
8. Responsibilities of Grantor and Grantee Not Affected. Other than as specified herein,
this Deed is not intended to impose any legal or other responsibility on Grantee, or in any
way to affect any existing rights or obligations of Grantor as owner of the Property.
Additionally,unless otherwise specified below,nothing in this Deed shall require Grantor
to take any action to restore the condition of the Property after any Act of God or other
event over which Grantor had no control,provided, however,that Grantee shall have the
right to bring an action at law or in equity for trespass or any other appropriate cause of
action against any third party who violates the terms of this Deed. Grantor shall continue
to be solely responsible and Grantee shall have no obligation for the upkeep and
maintenance of the Property and Grantor understands that nothing in this Deed relieves
Grantor of any obligation or restriction on the use of the Property imposed by law.
Among other things, this shall apply to:
a. Taxes. Grantor is a tax-exempt entity. However, if Grantor or the Property ever
become subject to real or personal property taxes or assessments levied against
the Property, Grantor shall be solely responsible for payment of all taxes and
12
assessments levied against the Property. If Grantee is ever required to pay any
taxes or assessments on its interest in the Property, Grantor will reimburse
Grantee for the same. If for any reason Grantor fails to pay any taxes,
assessments or similar requisite charges, Grantee may pay such taxes, assessments
or similar requisite charges, and may bring an action against Grantor to recover all
such taxes, assessments and similar charges plus interest thereon at the rate
charged delinquent Property taxes by the county treasurer's office in which the
Property is located.
b. No Liability. Grantee shall not be liable for injury or damages occurring on, or
arising from, the Property unless due solely to the gross negligence or intentional
acts of the Grantee. Liability of Grantor and Grantee, if any, shall not exceed an
amount equal to any limit forth in the Colorado Governmental Immunity Act now
existing or as may hereafter be amended. Grantor does not waive or intend to
waive the limitations on liability which are provided to it under the Colorado
Governmental Immunity Act, C.R.S. § 24-10-101 et seq. nor to confer any rights
or benefits on any person or activity not a party to this Agreement. Grantor agrees
to obtain and maintain at all times, commercial general liability insurance
consistent with the limits set forth in the Governmental Immunity Act, naming
Grantee as an additional insured. Grantor shall provide proof of such insurance at
any time requested by Grantee.
9. Enforcement.
a. General Provisions. Grantee shall have the right to prevent and correct or
require correction of violations of the terms of this Deed. If Grantee determines
that immediate entry is required to inspect for,prevent, terminate, or mitigate a
violation of the terms of this Deed, Grantee may enter the Property without
advance notice. If such entry occurs, Grantee shall notify Grantor within a
reasonable time thereafter. If Grantee determines that a violation has occurred,
Grantee shall notify Grantor, of the nature of the alleged violation in writing.
Upon receipt of said notice, Grantor shall immediately cease the alleged violation
and within thirty(30) days either(i) if necessary,provide a written plan for
restoration and remediation of the Property and, once approved by Grantee,
restore or remediate the Property in accordance with the plan; or(ii)provide
written documentation demonstrating that the activity is permitted and is not a
violation. Grantee's acceptance of Grantor's actions under(i) or(ii) above shall
be in Grantee's sole discretion, and shall be confirmed by Grantee in writing. If
Grantor is unable or unwilling to immediately cease the alleged violation, and
comply with(i) or(ii) above, the Parties agree to resolve the dispute through
mediation as set in forth in Section 32 or judicial process. At any point in time,
13
Grantee may take appropriate legal action, including seeking an injunction, to
stop the alleged violation.
b. Costs of Enforcement. Any costs incurred by Grantee in enforcing the terms of
this Deed against Grantor, including,without limitation, costs and expenses of
suit, and attorneys' fees necessitated by Grantor's violation of the terms of this
Deed, shall be borne by Grantor. If the deciding body determines that Grantor is
the prevailing party on all claims in any court action to enforce the terms of this
Deed, the Parties shall each be responsible for their own costs and attorney fees.
The foregoing two sentences are subject to the following:
Any costs of restoration necessitated by Grantor's violation of the terms of
this Deed, shall be borne by Grantor.
ii. If an action is brought to enforce the final decision of the mediator that
was agreed to by the Parties,then the prevailing Party shall be entitled to
payment from the non-prevailing Party of its costs incurred in enforcing
the terms of the final decision, including, without limitation, its costs and
expenses of suit, and attorneys' fees.
c. Grantee's Discretion. Grantee's remedies described in this Section 9 shall be
cumulative and shall be in addition to all remedies now or hereafter existing at
law or in equity, including the right to recover any damages for loss of
Conservation Values as described in C.R.S. § 38-30.5-108. The failure of
Grantee to discover a violation or to take action shall not waive any of Grantee's
rights, claims or interests in pursuing any such action at a later date.
10. Transfer of Easement.
a. Grantee shall have the right to transfer this Easement to any public agency or
private non-profit organization that, at the time of transfer: (i) is a "qualified
organization"under I.R.C. § 170(h); (ii) is authorized to hold conservation
easements under C.R.S. §§38-30.5-101, et seq. and C.R.S. §12-61-720, (iii)
expressly agrees in writing to abide by the terms of this Deed and to assume the
responsibility imposed on Grantee by this Deed; and(iv)is approved in writing
by Grantor such approval not to be unreasonably withheld. Grantee shall provide
Grantor with a written request to assign this Deed at least forty-five(45) days
prior to the date proposed for the assignment transaction.
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b. If Grantee ever ceases to exist or no longer qualifies under federal and state law to
hold conservation easement interests, or if Grantee desires to transfer this Deed to
a qualified organization having similar purposes as Grantee,but Grantor has
refused to approve the transfer, a court with jurisdiction shall transfer this Deed to
another qualified organization having similar purposes and that agrees to abide by
the terms of this Deed and to assume the responsibility imposed on Grantee by
this Deed,provided that Grantor shall have adequate notice of and an opportunity
to participate in the court proceeding leading to the court's decision on the matter.
c. Upon compliance with the applicable portions of this Section 10, the parties shall
record an instrument completing the assignment in the Eagle County Clerk and
Recorder's Office. Assignment of this Easement shall not be construed as
affecting this Easement's perpetual duration and shall not affect this Easement's
priority against any intervening liens, mortgages, easements, or other
encumbrances.
11. Transfer of Property.
a. Any time the Property or a portion thereof is transferred by Grantor to any
third party, Grantor shall pay a transfer fee of$500 to Grantee to be used for
purposes consistent with the Conservation Values, except that such transfer fee
shall not apply to any transfer by the original Grantor to a successor. Grantor
agrees to incorporate the terms of this Deed by reference in any deed or other
legal instrument by which it divests itself of any interest in all or a portion of the
Property, including,without limitation, a leasehold interest. Grantor shall notify
Grantee in writing forty-five(45) business days prior to the transfer of the
Property, after closing using the form in Exhibit D attached hereto and made a
part of this Deed, in order to accommodate the prior approval required by Section
11.B below. Within five(5)business days after the transfer of the Property,
Grantor shall provide Grantee with a copy of the new ownership deed. Grantee
reserves the right to record a notice of transfer fee in the official real property
records of Eagle County, Colorado. This provision is intended to run with the land
for perpetuity, and to touch and concern the Property burdened by this Easement
by providing Grantee a contribution toward its stewardship, enforcement and
defense of this Easement. If a fee is attributable to a transfer of property
classified as "residential real property," as defined in C.R.S. § 38-35-127(2)(e),
then the Grantee covenants and agrees that the fee shall be used for the purposes
specified in C.R.S. § 38-35-127(2)(b)(V) in a manner consistent with the
Grantee's open space mission.
15
b. County provided funding through its Open Space Program for Grantor's
acquisition of fee title to the Property above and beyond this Deed; therefore, any
voluntary sale, conveyance, transfer or disposal of all or any portion of the
Grantor's interest in the Property("Sale")to a third party, shall require prior
written approval from Grantee and may require a refund to Grantee of its
contribution toward the original purchase price for the Property, Grantee may
determine in its sole discretion, in addition to any payment that Grantee may be
entitled to receive under Section 14 concerning condemnation. Notwithstanding
any provision of this Deed to the contrary, in the event of any condemnation of
the fee title, the requirements of this section shall continue to apply.
12. Real Property Interest. The granting of this Deed immediately vests Grantee with a
property interest. Grantor and Grantee agree that this property interest is seventy five
percent(75%)of the full fair market value of the Property(the "Proceeds Percentage").
Grantor and Grantee further agree that this percentage shall remain constant.
13. Termination of Easement. This Easement may only be terminated or extinguished by
judicial proceedings by a court of competent jurisdiction. The total loss of all the
Conservation Values on the Property is the only grounds under which this Easement can
be terminated. If this Easement is extinguished or terminated,whether in whole or in
part, Grantee shall be paid proceeds equal to the Proceeds Percentage multiplied by the
fair market value of the Property. Grantee's use of the proceeds shall be used in a
manner consistent with its conservation purpose within Eagle County and in compliance
with and as approved by the Eagle County Open Space Program.
14. Condemnation. Grantor shall notify Grantee immediately of any communication or
notice received concerning any proposed taking under the power of eminent domain by
public, corporate, quasi-governmental or other authority, or acquisition by such authority
through purchase in lieu of the exercise of eminent domain ("Condemnation") affecting
the Property, and Grantee shall have the right to participate in any proceedings as a real
property interest holder. Grantee may pursue any remedies in law or equity, including
opposition to the Condemnation of the Property. If all or any part of the Property is taken
by Condemnation, Grantee shall receive proceeds directly from the authority for any such
Condemnation equal to the Proceeds Percentage multiplied by the total proceeds received
by Grantor. Grantee's use of the proceeds shall be used in a manner consistent with its
conservation purpose within Eagle County and in compliance with and as approved by
the Eagle County Open Space Program.
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15. Perpetual Duration. This Easement shall be a servitude running with the land in
perpetuity. The provisions of this Deed that apply to Grantor or Grantee shall also apply
to their respective agents, heirs, executors, administrators, assigns, and all other
successors as their interests may appear;provided, however,that each party's rights and
obligations under this Easement shall terminate(as to such party,but not as to such
party's successor,who shall be bound as provided herein)upon a transfer of the party's
entire interest in this Easement or the Property, except that liability of such transferring
party for acts or omissions occurring prior to such transfer shall survive the transfer.
16. Change of Circumstance. Grantor has considered that acts or uses restricted or
prohibited by this Deed may become more economically valuable than the permitted uses
and acts. It is the intent of both Grantor and Grantee that such circumstances shall not
justify the termination or extinguishment of this Easement pursuant to Section 13. In
addition, the inability to carry on any or all of the permitted uses, or the unprofitability of
doing so, shall not impair the validity of this Easement or be considered grounds for its
termination or extinguishment pursuant to Section 13.
17. Grantor's Notice. Where Grantor's notice is required in this Deed, Grantor shall notify
Grantee in writing not less than thirty(30) calendar days prior to the date Grantor intends
to undertake the activity in question. The written notice shall describe the proposed
activity in sufficient detail(i.e. location, size, scope, design, nature)to allow Grantee to
evaluate the consistency of the proposed activity with the pertinent terms of this Deed.
18. Grantee's Approval. Where Grantee's approval is required in this Deed, Grantee shall
grant or withhold its approval in writing within thirty(30)calendar days of receipt of
Grantor's written notice thereof which must comply with Section 17. As part of its
determination, Grantee shall consider the proposed manner in which the proposed activity
will be conducted, whether it complies with the terms of this Deed, and the likely impact
on the Conservation Values. Grantee's approval may be withheld only if Grantee
reasonably determines that there is a significant risk that the activity as proposed is not
consistent with the Purpose. Grantee may condition its approval on Grantor's acceptance
of modifications,which Grantee reasonably determines makes the proposed activity
consistent with the Purpose. Grantee may request additional information from Grantor
during the thirty(30) day period, and Grantee shall then have an additional thirty(30)
days from the receipt of such additional information to approve or deny Grantor's request
in writing. If Grantee does not respond to Grantor's written request within thirty(30)
calendar days of receipt, the request shall be deemed denied,provided however, that if
after expiration of the 30-day period, Grantor submits a second written request, and
Grantee does not respond within thirty(30)calendar days of receipt of Grantor's second
request, Grantor's request shall be deemed approved. Grantor shall not engage in the
17
proposed act or use until Grantor receives Grantee's approval in writing(or unless
Grantee fails to respond within thirty(30)calendar days after receipt of Grantor's second
request). If Grantor disagrees with the decision of Grantee, Grantor may appeal the
decision through the mediation process set forth in Section 31.
19. Notices. Any notice that either party is required to give to the other in writing shall be
transmitted via(i)hand delivery, (ii)U.S. mail, (iii) overnight delivery service that
provides proof of delivery, or(iv) any other delivery service mutually agreed to by the
Parties in writing,to the following addresses, which addresses may change from time to
time by a party giving written notice in the manner set forth above:
Grantor: Town of Gypsum
P.O. Box 130
Gypsum, CO 80137
Phone:
Fax:
Grantee: The Board of County Commissioners of Eagle County
P.O. Box 850
500 Broadway
Eagle, Colorado 81631
Phone: 970-328-8605
Fax: 970-328-8629
With a copy to: Eagle County Open Space
P.O. Box 179
500 Broadway
Eagle, Colorado 81631
Phone: 970-328-8698
Fax: 970-328-7185
Eagle County Attorney
P.O. Box 850
500 Broadway
Eagle, Colorado 81631
Phone: 970-328-8685
Fax: 970-328-8699
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20. Liens on the Property. No provisions of this Deed should be construed as impairing the
ability of Grantor to use this Property as collateral for subsequent borrowing. Any
mortgage or lien arising from such a borrowing is subordinate to this Deed.
20. No Merger. Unless the Parties expressly state that they intend a merger of estates or
interests to occur,then no merger shall be deemed to have occurred hereunder or under
any document executed in the future affecting this Easement.
21. Grantor's Representations and Warranties.
a. Grantor warrants that Grantor has good and sufficient title to the Property, free
from all liens and encumbrances except ad valorem property taxes for the current
year, Third-Party Rights and other interests of record.
b. Grantor represents and warrants:
i. At the time of executing this Deed, no hazardous substance or toxic waste
is currently being treated, stored,used, disposed of, deposited, or
transported, in, on, or across the Property by Grantor, and Grantor is not
aware of any underground storage tanks located on the Property;
ii. At the time of executing this Deed,the Property is in compliance with all
federal, state, and local laws,regulations, and requirements applicable to
the Property and its proposed use as open space;
iii. At the time of executing this Deed, there is no pending or threatened
litigation relating to the Property; and
iv. At the time of executing this Deed,no investigations or proceedings are
now pending, and no notices, claims, demands, or orders have been
received, arising out of any violation or alleged violation of, or failure to
comply with, any federal, state, or local law, regulation, or requirement
applicable to the Property or its use.
22. Acceptance. Grantee hereby accepts without reservation the rights and responsibilities
conveyed by this Deed.
23. General Provisions:
a. Severability. If any provision of this Deed, or the application thereof to any
person or circumstance, is found to be invalid, the remainder of the provisions of
19
this Deed, or the application of such provision to persons or circumstances other
than those as to which it is found to be invalid, as the case may be, shall not be
affected thereby.
b. Captions. The captions in this instrument have been inserted solely for
convenience of reference and are not a part of this instrument and shall have no
effect upon construction or interpretation.
c. Waiver of Defenses. Grantor hereby waives any defense of laches, estoppel or
prescription and acknowledges and agrees that the one-year statute of limitation
provided under C.R.S. § 38-41-119 does not apply to this Deed, and Grantor
waives any rights of Grantor pursuant to such statute.
d. Controlling Law and Interpretation. This Deed shall be performed and broadly
interpreted under the laws of State of Colorado,resolving any ambiguities and
questions of the validity of specific provisions in favor of maintaining the Purpose
of this Deed. Any decisions resolving such ambiguities shall be documented in
writing.
e. Counterparts. The parties may execute this instrument in two or more
counterparts which shall, in the aggregate,be signed by all Parties; each
counterpart shall be deemed an original instrument as against any party who has
signed it; all counterparts, when taken together, shall constitute this instrument.
f. Amendment. If circumstances arise under which an amendment to or
modification of this Deed would be appropriate, Grantor and Grantee are free to
jointly amend this Deed;provided that no amendment shall be allowed that will
confer a private benefit to Grantor or any other individual greater than the benefit
to the general public or result in private inurement for a Board member, staff or
contract employee of Grantee, or affect the qualifications of this Deed under any
applicable laws. Any amendment shall be consistent with Grantee's policies,
must have neutral or beneficial effect on the Property's Conservation Values, as
determined by Grantee in its sole discretion, must be consistent with the Purpose,
shall not affect the perpetual duration of this Easement. Grantor shall pay any and
all costs, including staff time and attorney's fees associated with any amendment
proposed by Grantor; provided that Grantee first provides Grantor with an
estimate of such fee. Any amendment must be in writing, signed by both Parties,
and recorded in the official records of Eagle County, Colorado.
20
g. Entire Agreement. This instrument sets forth the entire agreement of the Parties
with respect to the terms of this Easement and supersedes all prior discussions,
negotiations,understandings, or agreements relating to the terms of this
Easement, all of which are merged herein.
24. Development Rights. Grantor herby grants to Grantee all development rights except as
specifically reserved herein, and the Parties agree that such rights are terminated and
extinguished unless reserved herein.
25. Recording. Grantor shall record this Deed in a timely fashion in the official real Property
records of Eagle County, Colorado, and Grantee may re-record it at any time as may be
required to preserve its rights in this Easement.
26. No Third Party Enforcement. This Deed is entered into by and between Grantor and
Grantee and does not create rights or responsibilities for the enforcement of the terms of
this Deed in any third parties except as expressly reserved herein.
27. Joint and Several Liability. If Grantor at any time owns the Property in joint tenancy or
tenancy in common, Grantor shall be jointly and severally liable for all obligations set
forth in this Deed.
28. Ownership by Single Entity Consisting of Multiple Parties. If Grantor at any time is an
entity which consists of shareholders,partners or members, such Grantor entity is
required to include in its operating agreement,bylaws or other documents setting forth
the rights and responsibilities of the entity, the right to assess or to otherwise collect
payment from such shareholders,partners or members for any monetary or other
obligations set forth in this Deed. Grantor shall provide a copy of such documentation at
any time upon Grantee's request.
29. Environmental Attributes. Grantor hereby reserves all Environmental Attributes
associated with the Property. `Environmental Attributes" shall mean any and all tax or
other credits,benefits,renewable energy certificates, emissions reductions, offsets, and
allowances (including but not limited to water,riparian, greenhouse gas,beneficial use,
and renewable energy), generated from or attributable to the conservation,preservation
and management of the Property in accordance with this Deed.Nothing in this Section
29 shall modify the restrictions imposed by this Deed or otherwise impair the
preservation and protection of the Conservation Values.
30. Annual Appropriation. To the extent that any financial obligation of this Deed is subject
to the multiple fiscal year obligations as set forth in Article 10 of the Colorado
21
Constitution or C.R.S. § 29-1-110, such obligation may be subject to annual
appropriation by Grantor. The foregoing is not an agreement or an acknowledgement by
either Grantor or Grantee that any financial obligation which could arise pursuant to this
Deed would be subject to the requirement that funds for such financial obligation must be
appropriated by Grantor. Nothing in this Deed shall be deemed to be a waiver of any
rights that Grantee may have pursuant to C.R.S. § 13-60-101. Nothing in this Section 30
shall prevent Grantee from enforcing this Deed in accordance with its terms, despite a
failure by Grantor to appropriate funds.
31. Mediation of Disputes. If Grantee or Grantor has an enforcement dispute as set forth in
Section 9 of this Deed, or if Grantee denies a request by Grantor for approval pursuant to
Section 18 of this Deed, Grantor may appeal Grantee's decision by requesting mediation
with Grantee in a written notice to Grantee. Within ten(10)working days of the receipt
of such request, the Parties shall select a single, trained, and impartial mediator with
experience in conservation easements and other land preservation tools. Mediation shall
then proceed in accordance with the following guidelines:
a. Purpose. The purpose of the mediation is to: (i)promote discussion between the
Parties; (ii) assist the Parties to develop and exchange pertinent information
concerning the issues in dispute; and(iii) assist the Parties to develop proposals
which will enable them to arrive at a mutually acceptable resolution of the
controversy. The mediation is not intended to result in any express or de facto
modification or amendment of the terms, conditions, or restrictions of this
Easement.
b. Participation. The Parties agree that they will participate in the mediation
process in good faith and expeditiously, attending all sessions scheduled by the
mediator. Representatives of the Parties with settlement authority will attend
mediation sessions as required by the mediator.
c. Confidentiality. All information presented to the mediator shall be deemed
confidential and shall be disclosed by the mediator only with the consent of the
Parties or their respective counsel. The mediator shall not be subject to subpoena
by any Party. No statements made or documents prepared for mediation sessions
shall be disclosed in any subsequent proceedings or construed as an admission of
a Party in accordance with Colorado Rules of Evidence, Rule 408.
d. Time Period. Neither Party shall be obligated to continue the mediation process
beyond a period of sixty(60) days from the date of receipt of the initial request or
22
if the mediator concludes that there is no reasonable likelihood that continuing
mediation will result in a mutually agreeable resolution of the dispute.
e. Costs of Mediation. Grantor shall pay all of Grantee's expenses associated with
the mediation, including attorneys' fees and consultant fees, except that Grantor
and Grantee shall share the cost of the mediator.
32. Force Majeure. Grantor shall not be obligated to send any prior notice to Grantee, and
Grantee shall not be entitled to bring any action against Grantor,with respect to any
prudent, good faith activity undertaken by Grantor 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 Grantor. Grantor
will promptly inform Grantee of injury to the Property caused by such events or actions.
TO HAVE AND TO HOLD,this Deed of Conservation Easement unto Grantee, its
successors and assigns, forever.
[SIGNATURE PAGES TO FOLLOW]
23
IN WITNESS WHEREOF, Grantor and Grantee, intending to legally bind themselves,
have set their hands on the date first written above.
GRANTOR:
TOWN OF GYPSUM, COLORADO
by and through its Town Council
By:
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this day of
, 2016,by as Town of
Gypsum, Colorado.
Witness my hand and official seal.
My commission expires:
Notary Public
24
GRANTEE:
EAGLE COUNTY, COLORADO
by and through its Board of County Commissioners
By:
Jeanne McQueeney, Chair
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this day of
, 2016, by Jeanne McQueeney, Chair of Eagle County Board of County
Commissioners.
Witness my hand and official seal.
My commission expires:
Notary Public
25
EXHIBIT A
Legal Descriptions of the Land Comprising the Property
26
EXHIBIT B
Maps of the Land Comprising the Property
27
EXHIBIT C
Sample Notice of Transfer of Property
To: Eagle County, Colorado ("Grantee")
From: [Insert name of fee owner] ("Grantor")
Pursuant to Section 11 of the Deed of Conservation Easement recorded (date) under
reception number , Grantee is hereby notified by Grantor of the proposed transfer
of the fee simple interest in the subject Property legally described in Exhibit A attached hereto
effective [insert date of closing] to [insert name of new Grantor], who can be reached at
[insert name,legal address,phone and fax number].
GRANTOR:
By:
Title:
STATE OF COLORADO )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
, 20_, by as of
Witness my hand and official seal.
My commission expires:
Notary Public
Date:
28
RESTRICTIVE COVENANT
THIS RESTRICTIVE COVENANT (this"Covenant") is entered into as of the
day of , 2016 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 (the"Conservation
Property").
C. In connection with the conservation of the Conservation Property, Gypsum agrees, by
this Covenant,to restrict the uses that may occur on that portion of the Property legally described
in Exhibit C, and depicted in Exhibit D,both of which are attached hereto and incorporated
herein by reference,totaling approximately 157.67 acres(the"Covenant Property"). The
Covenant Property shall not be 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.
COVENANT
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. 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 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 manage 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. County and Gypsum have prepared and mutually
agreed to a land management plan(the"Management Plan"or the"Plan")that shall provide
guidelines for the use of the Covenant Property. The Covenant Property shall be used, operated
and managed in accordance with the management issues addressed in the Management Plan or as
otherwise set forth in this Covenant. If Gypsum intends to undertake any activities not expressly
permitted or addressed in a current Management Plan, Gypsum shall not undertake such
activities until Gypsum has first prepared an amended Management Plan. The Plan shall be
amended if determined necessary by either Party. Any amendment to the Management Plan
shall be approved by County in writing. The Management Plan shall provide that County shall
have no responsibility for management or other expenses related to the Covenant Property.
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.
3. SUBDIVISION 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 Improvements.
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i. 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 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 are 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
power lines; and(b) telephone and communications towers,poles and lines; and(iii)gas
lines; and(iv) sewer, septic and waste water facilities on the Covenant Property. 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(iii) gas lines; and(iv) sewer, septic and waste water facilities and(v)
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. Signs. Gypsum may place, 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 Advisory Management Committee.
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vi. Recreational Trails. Gypsum 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. County
shall be entitled to review and approve the form of 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.
4. OTHER PROHIBITED USES
i. 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.
ii. 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 repair of
equipment necessary for the maintenance of the Covenant Property.
iii. 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
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
iii. 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.
iv. The exploration,mining, or extraction of minerals, oil, gas, or other
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hydrocarbons, soils, sands, gravel, rock, or other materials ("Minerals") 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
may be withheld in County's sole discretion
d. Other uses. Any uses of the Covenant Property not involving or supporting
dispersed recreation shall be approved in advance by the Advisory Management Committee 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 full value of
the interests in the Covenant Property subject to the taking or in-lieu purchase, and all damages
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 terms 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.
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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. FURTHER 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 carry 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 received or not,when deposited in
the United States mail,postage pre-paid, registered or certified mail, return receipt requested,
addressed as follows:
If to Gypsum: Town of Gypsum
Jeff Shroll, Town Manager
Post Office Box 130
Gypsum, CO 81637
Telephone: 970-524-7515
With copy to: Collins Cockrel Cole
Attn: Kathryn G. Winn
390 Union Blvd. Suite 400
Denver, CO 80228-1556
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
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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 this 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.
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
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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. 24-10-101, 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
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.
//Remainder of Page Intentionally Left Blank//
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IN WITNESS WHEREOF,this Restrictive Covenant is hereby executed as of the date first
written above.
TOWN OF GYPSUM:
Town of Gypsum, Colorado
By:
Jeff Shroll
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this day of
2016,by Jeff Shroll, Town Manager, Town of Gypsum, Colorado.
Witness my hand and official seal.
My commission expires:
Notary Public
EAGLE COUNTY:
Eagle County, Colorado
By and through its Board of County Commissioners
By:
Jeanne McQueeney, Chair
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this day of
2016,by Jeanne McQueeney, Chair, Eagle County Board of County Commissioners.
Witness my hand and official seal.
My commission expires:
Notary Public
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EXHIBIT A
Legal Description of Entire Property
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Exhibit B
Map of Entire Property
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Exhibit C
Legal Description of Covenant Property
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Exhibit D
Map of Covenant Property
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