HomeMy WebLinkAboutR16-107 Open Space Funds - Walking Mountain Science Center - Avon tC.c�(2-
Commissioner �N t) -- - moved adoption
of the following Resolution:
BOARD OF COUNTY COMMISSIONERS
COUNTY OF EAGLE,STATE OF`�QLORADO
RESOLUTION NO.2016- 11
RESOLUTION APPROVING THE GRANT OF OPEN SPACE FUNDS TOWARD EAGLE
VALLEY LAND TRUST'S WALKING MOUNTAINS SCIENCE CENTER LAND
ACQUISITION AND PRESERVATION PROJECT
WHEREAS, on or about July 6, 2016, Walking Mountain Science Center(hereinafter"WMSC") entered
into a purchase contract to acquire ownership of a 5.8 acre property proximate to their existing campus in
Avon,Colorado(the"Property"); and
WHEREAS, WMSC has agreed to encumber approximately 3.51 acres of the Property, identified as Lot
2B on the draft Final Plat for Buck Creek Subdivision, Filing No. 3, attached hereto as Exhibit A,
incorporated herein by this reference (hereinafter "Walking Mountains Conservation Property") with a
perpetual conservation easement granted to Eagle Valley Land Trust(hereinafter"EVLT");and
WHEREAS, EVLT desires to accept said conservation easement on the Walking Mountains Conservation
Property in order to preserve educational values and scenic qualities;and
WHEREAS, WMSC has agreed to grant to the County a perpetual Public Access Easement over the
Walking Mountains Conservation Property, which Public Access Easement is acknowledged and
accepted in the EVLT conservation easement;and
WHEREAS, in order to simultaneously preserve the surrounding open space land surrounding the
Walking Mountains Conservation Property, the Town of Avon has agreed to simultaneously convey a
conservation easement to Eagle County on two parcels totaling approximately 95 acres of Town-owned
land(the"Avon Conservation Property"); and
•WHEREAS, the Avon Conservation Property is depicted on Exhibit B, which is attached hereto and
incorporated herein by reference; and
WHEREAS, the preservation of the Walking Mountains Conservation Property and the Avon
Conservation Property, and the grant of the Public Access Easement to the County shall be collectively
referred to herein as the"Project"; 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 Eagle Valley Land Trust; and
WHEREAS, Eagle County desires to grant One Million Dollars($1,000,000) from the Open Space Fund
towards the Project through a grant to EVLT, with an additional amount to cover EVLT and County
transaction costs, including but not limited to, baseline reports, stewardship endowment, project fees,
legal defense, mineral and environmental analyses, title insurance, closing costs, and the like on the
-s ,- + FORM
Eagle County A torney`s • ice
By:
Eayie County Commissioners'Office
Walking Mountains Conservation Property and Avon Conservation Property (collectively "Transaction
Costs"); and
WHEREAS, at its November 14, 2016 meeting, the Eagle County Open Space Advisory Committee,
based on its findings, recommended approval of the use of One Million Dollars ($1,000,000)towards the
Project and up to Fifty Thousand Dollars ($50,000) toward Transaction Costs related to the Walking
Mountains Conservation Property and up to Fifty Thousand Dollars($50,000)towards Transaction Costs
on the Town of Avon Conservation Property; and
WHEREAS, at its regular meeting on December 13, 2016, Eagle County Board of County
Commissioners considered the funding request, presentation from staff, and the recommendation of the
Open Space Advisory Committee and the proposed form of documents related to the Project, including
the proposed Deed of Conservation Easement for the Avon Conservation Property; and
WHEREAS, subsequent to its December 13, 2016 meeting, the Town of Avon and Eagle County
negotiated certain revisions to the terms of the proposed Deed of Conservation Easement for the Avon
Conservation Property; and
WHEREAS, the Board intends that this Resolution supersede and replace the Resolution of the Board
dated December 13, 2016 approving the grant of open space funds toward Eagle Valley Land Trust's
Walking Mountains Science Center Land Acquisition and Preservation Project so as to approve the
negotiated and revised form of Deed of Conservation Easement for the Avon Conservation Property
attached hereto as Exhibit F.
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 One
Million Dollars($1,000,000) from the Open Space Fund for the Project,with an additional amount,not to
exceed Fifty Thousand Dollars ($50,000) towards Transaction Costs for the Walking Mountains
Conservation Property and up to Fifty Thousand Dollars ($50,000) towards the Transaction Costs for the
Avon Conservation Property;
That, EVLT is to be reimbursed only for eligible expenses outlined in the Funding Agreement Between
Eagle County and the Eagle Valley Land Trust Related to the Walking Mountains Science Center
Conservation Project;
THAT, such expenditure of Open Space Funds shall be subject to County's satisfactory due diligence
review and approval of the following documents, in a form substantially similar to the following
attachments(without exhibits here):
1. Exhibit C: Deed of Conservation Easement,Walking Mountains Science Center Parcel;
2. Exhibit D:Walking Mountains Science Center Management Plan;
3. Exhibit E:Public Access Easement;and
4. Exhibit F: Deed of Conservation Easement,Avon Northside Parcels.
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; and
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.
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
BOARD OF COUNTY COMMISSIONERS
ATTEST:
r'. aaC�. -VIv�^ BY�Regina O'Brien I /fi()
McQueeney
Clerk to the Board of
County Commissioners
Alffse
Jill •! Ryan
ssioner
■ Lll� �•
athy Chan4l e - enry
Commissioner
Commissioner -c seconded adoption of the foregoing resolution. The roll
having been called,the vote was as follows:
Commissioner McQueeney IQ,w`
Commissioner Ryan t4-14.
Commissioner Chandler-Henry
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 Valley Land Trust
Attn: Jim Daus
P.O.Box 3016
Edwards,CO 81632
Any time the Property is transferred by Grantor to any third party, Grantor shall pay a transfer
fee of 0.5%to Grantee and notify Grantee pursuant to the requirements of Section 11.
DEED OF CONSERVATION EASEMENT
Walking Mountains Science Center
THIS DEED OF CONSERVATION EASEMENT ("Deed") is granted on this day
of December, 2016, by WALKING MOUNTAINS, a Colorado non-profit corporation, d/b/a
WALKING MOUNTAINS SCIENCE CENTER, whose address is 318 Walking Mountains
Lane, Avon, Colorado 81620 ("Grantor")to EAGLE VALLEY LAND TRUST, a Colorado
non-profit corporation, whose address is P.O. Box 3016, Edwards, Colorado 81632 ("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 3.51 acres of real property located in Eagle County, Colorado, more particularly
described in Exhibit A and depicted as Lot 2B in Exhibit B,both attached hereto and made a
part hereof(the "Property").
B. Qualified Organization. Grantee is a "qualified organization," as defined in
I.R.C. § 170(h) and a charitable organization exempt under I.R.C. § 501(c)(3), as required under
C.R.S. § 38-30.5-104(2). Grantee is certified by the State of Colorado's Division of Real Estate
to hold conservation easements for which a state tax credit is claimed. Grantee is also accredited
by the Land Trust Accreditation Commission, a national accreditation program sponsored by the
Land Trust Alliance. Grantee's primary purpose is to preserve and protect the natural, scenic,
agricultural,historical, and open space resources of Eagle County, including the area in which
the Property is located,by assisting landowners who wish to protect their land in perpetuity to
preserve and conserve natural areas, environmentally significant land, and working landscapes
for ecological, scenic, aesthetic, scientific, charitable and educational purposes.
C. 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
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Exhibit C
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 C 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) Recreation or Education [Treas. Reg. § 1.170A-14(d)(2)]. The Property
is in a predominantly natural condition and features montane meadows, aspen forest, and
a wooded riparian corridor along an approximately 550-foot reach of Buck Creek. The
Property is intended to be used for passive public recreation and education including
public trails. Such public trails are important to the local residents of Eagle County and
the Town of Avon because they provide recreational opportunities in a natural and scenic
setting close to an area with relatively high housing density. The public trails on the
Property will also be used by Grantor for outdoor education as part of the Walking
Mountains Science Center. The Science Center provides educational opportunities to
residents of and visitors to the Town of Avon and the surrounding communities, and
serves more than 80,000 people annually with its programs. The Easement(defined
below) accommodates public use of the Property, including passive recreation, public
education, and parking.
2) 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(set forth in Recitals D and E below) and will yield a significant public benefit.
a. Scenic Enjoyment. The Property's preservation will provide
scenic enjoyment to the general public because the Property is in an undeveloped
and natural condition, featuring a mosaic of natural vegetation communities
across dramatic topography. As such,the Property adds to the scenic character,
openness, and variety of the local rural landscape. The Property is visually
accessible to the public from Interstate Highway 70,Nottingham Road, Buck
Creek Road, and from nearby adjacent Town of Avon open space properties and
the public trails located thereon, which are actively used by the citizens of the
Town of Avon, Eagle County and the State of Colorado.
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 Avon and the surrounding areas within Eagle
County. The Property is zoned for townhouses, and there is a strong likelihood
that development of the Property would lead to or contribute to degradation of the
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scenic and natural character of the area. The Property also provides wildlife
habitat at the site-specific level and habitat connectivity at the landscape level.
Preservation of the Property will continue to provide an opportunity for the
general public to appreciate the Property's scenic values within the context of the
scenic Eagle Valley, which is important for preserving regional resources with the
potential to provide revenue and attract tourism to the area.
These Conservation Values are of great importance to Grantor, Grantee, and the residents of the
Town of Avon, Eagle County, and the State of Colorado. It should also be noted that the terms
of this Easement do not permit a degree of intrusion or future development that would interfere
with the Conservation Values.
D. State Policy Concerning Conservation Easements.
1) 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 . . ."
2) 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.
3) 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."
E. Other Supporting Government Policy.
1) Eagle County Resolution No. 02-123 provides for the creation of an open
space mill levy for the purpose of acquiring,maintaining, or permanently preserving 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. 16-064 establishes that certain
characteristics and/or traits make a property worthy of protection through the Open Space
Program, such as and not by way of limitation, fish and wildlife habitat or migration
routes; working farms and ranches; scenic landscapes and vistas; wetlands, floodplains or
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other riparian habitat; public access to rivers and streams or lands open to the public;
dispersed recreation; geographic or topographic formations; rare or significant flora or
fauna; cultural historic values; or other natural, open space or conservation values.
3) The 2005 Eagle County Comprehensive Plan has the following policies
and strategies, including:
a. Development and development patterns should preserve
landscapes that include visual,historic, and archeological value(3.8.3.c).
b. A variety of approaches should be utilized to preserve land as open
space (3.8.4.e) including conservation easements.
c. Open space should be able to serve different needs in different
applications (3.8.4).
F. Documentation of Present Conditions. Pursuant to Treas. Reg. § 1.170A-
14(g)(5) and in order to document the condition of the Property as of the Effective Date, a report
has been prepared by Rare Earth Science, LLC and dated December 1, 2016 (the`Baseline
Report"). The Baseline Report contains a natural resources inventory and also 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 Easement 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 Easement. However, the Baseline Report is not
intended to preclude the use of other evidence to establish the condition of the Property as of the
Effective Date.
G. County Funding. Grantor's purchase of the Property and this Easement were
funded in part by Eagle County, a body corporate and politic,by and through the Eagle County
Open Space Program(the"County"); as part of this transaction Grantor is granting a public
access easement("Public Access Easement") to the County over the Property. County is
entitled to a copy of any report generated in connection with the resource management for the
Property.
NOW, THEREFORE, in consideration of a charitable donation of a portion of the fair
market value of the conservation easement interest granted by this Deed, the payment of funds
by the County, the receipt and sufficiency of which are hereby acknowledged, the recitals set
forth above, incorporated herein by reference, and the mutual covenants, terms, conditions, and
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restrictions contained herein, and 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.
1. Purpose. The purpose of this Easement is to ensure that Grantor preserve and protect in
perpetuity the Conservation Values as they exist upon the Effective Date (defined below)
and as they may evolve in the future, in accordance with I.R.C. § 170(h), Treas. Reg. §
1.170A-14, and C.R.S. § 38-30.5-101, et seq. ("Purpose"). To effectuate the Purpose of
this Easement, the Parties agree: (i) to permit those uses of the Property that are expressly
permitted by this Easement, subject to any limitations or restrictions stated herein, and
those uses of the Property that do not materially adversely affect the Conservation
Values; and (ii)to prevent any use of the Property that is expressly prohibited by this
Easement or will materially adversely affect the Conservation Values. Nothing in this
Easement is intended to compel a specific 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:
a. To preserve and protect the Conservation Values in perpetuity;
b. To enter upon the Property at reasonable times to monitor Grantor's compliance
with and otherwise enforce the terms of this Easement; 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 Easement;
e. To place signs on the Property that identify the land as being protected by this
Easement and recognizing the County's participation in the transaction resulting
in this Easement, the size, number, and location of which signs are subject to
Grantor's and the County's reasonable approval; and
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f. All Development Rights as defined in Section 25 (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
Easement.
3. Rights Retained by Grantor. Subject to the terms and provisions of this Easement,
Grantor reserves to Grantor, and to Grantor's personal representatives, heirs, successors
and assigns, all rights accruing from Grantor's ownership of the Property, including: (i)
the right to engage in or permit or invite others to engage in all uses of the Property that
are expressly permitted by this Easement, subject to any limitations or restrictions stated
herein, and those uses of the Property that do not materially adversely affect the
Conservation Values; and (ii) to retain the economic viability of the Property and to
retain income derived from the Property from all sources (provided that there shall be no
charge by Grantor for public use of the Property under the terms of the Public Access
Easement that will be granted by Grantor to County). Grantor may not, however,
exercise these retained rights in a manner that is expressly prohibited by this Easement or
that materially adversely affects the Conservation Values.
4. Management Plan. Grantor, Grantee and County 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
Easement. 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 Easement or addressed in a current Management Plan, Grantor shall not
undertake such activities unless and until Grantor has first prepared, and Grantee and
County have approved, an amendment to the Management Plan. Any amendment to the
Management Plan shall not be effective unless and until reviewed and approved by
Grantee in accordance with Sections 17(Grantor's Notice) and 18 (Grantee's Approval)
and by Grantor and County.
5. Property Improvements. Improvements existing as of the Effective Date are permitted.
The installation, placement or construction of any other improvement is prohibited unless
expressly permitted by this Section 5.
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a. Existing Improvements. At the time of granting of this Easement, there are no
improvements on the Property except for a paved Road (defined below), a dirt
Trail (defined below), remnant fencing, and miscellaneous Utility Improvements
(defined below).
b. New Improvements. The following shall be referred to herein as "New
Improvements:"
1. Grantor may place, install, construct,maintain, repair and replace the
following new improvements on the Property: (i)information kiosk; and
(ii) interpretive and directional signage; and (iii) one or more outdoor
open-air teaching areas as set forth in the Management Plan.
2. Prior to the location, construction, replacement or enlargement of any New
Improvement as permitted in this Section 5, Grantor shall notify Grantee
in accordance with Section 17 (Grantor's Notice).
c. Roads and Trails. For purposes of this Section, "Roads" shall mean any
permanent road that is graded, improved or maintained, including any seasonal
unimproved roads and two-track roads. "Trails" shall mean any unimproved or
improved path, or paved or unpaved trail constructed or established by human
use,but shall not include trails established by wildlife or livestock.
1. Roads. Grantor shall not construct or establish new Roads, unless
approved by Grantee pursuant to Sections 17 (Grantor's Notice) and 18
(Grantee's Approval). Subject to the foregoing, Grantor may maintain and
repair Roads without Grantee's permission,but Grantor may not widen or
otherwise improve any Road unless approved by Grantee in accordance
with Sections 17 (Grantor's Notice) and 18 (Grantee's Approval).
2. Trails. Grantor may maintain and repair any Trail existing on the
Property as of the Effective Date. The Property is subject to an easement
to the Town of Avon for construction of one (1)new Trail. In addition,
Grantor is granting the Public Access Easement to the County which
permits construction of one (1)new Trail, the location of which shall be
approved by Grantee pursuant to Sections 17 (Grantor's Notice) and 18
(Grantee's Approval). Except for the two (2)new Trails described in the
previous two sentences, Grantor may not construct or establish any new
Trail on the Property unless approved as part of the Management Plan, or
otherwise approved by Grantee pursuant to Sections 17 (Grantor's Notice)
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and 18 (Grantee's Approval). 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.
d. 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 set forth in the
Management Plan.
e. Utility Improvements. Existing utility improvements, if any, including but not
limited to: (i) transformers and power lines; (ii) telecommunication lines; (iii)
domestic water pipelines; (iv) septic systems or sewer pipelines; and (v) storm
water drainage pipelines ("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
permitted uses on the Property is permitted provided that such activity is
consistent with the Purpose, and has been approved by the County in its discretion
(also, "Utility Improvements"). Grantor may install new Utility Improvements,
or 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). 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).
f. Signs. Grantor may place and maintain interpretive and directional trail signs
provided such signs do not exceed nine(9) 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).
g. 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
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the Property that is not a Road, provided that such vehicles shall be used only for
property management purposes including,but not limited to, maintenance of the
Roads and Trails,weed control, and habitat restoration. Grantor reserves the right
to park motor vehicles on the existing Road. 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.
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.
a. Relatively Natural Habitat. Grantor may conduct any activities to create,
maintain, restore, or enhance wildlife habitat and native biological communities
on the Property,provided that such activities do not temporarily or permanently
have a material adverse effect on the Conservation Values. If such activities
could in any manner temporarily or permanently have a material adverse effect on
the Conservation Values, Grantor must first notify Grantee and obtain Grantee's
consent pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's Approval).
b. Mineral Extraction. As of the Effective Date, Grantor owns all of the coal, oil,
gas hydrocarbons and other minerals (the"Minerals") located on,under, or in the
Property or otherwise associated with the Property. This Easement expressly
prohibits the mining or extraction of Minerals using any surface mining method.
Grantor may permit subsurface access to Minerals from locations off the Property,
provided that Grantor shall not permit such subsurface access to disturb the
subjacent and lateral support of the Property.
c. 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, and 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 with
Grantee's consent pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's
Approval). Re-vegetation of the Property including planting of shrubs and trees is
permitted in a manner consistent with the Purpose.
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d. 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
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.
e. 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.
f. Water Rights. No water rights are encumbered by this Easement.
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 intends to grant the Public Access Easement to the County in conjunction
with the granting of this Easement, and to permit access to the Property, in
accordance with the Public Access Easement and Management Plan, for use by
the public for purposes permitted by this Easement.
h. Educational Activities. Grantor may undertake, or permit members of the public
to undertake, educational activities, such as interpretive walks and talks, field
science programs, and ecological research and restoration.
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 Easement. 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 has the right to collect fees for its educational and
recreational programs. Grantor may conduct other commercial uses on the
Property with Grantee's approval pursuant to Sections 17 (Grantor's Notice) and
18 (Grantee's Approval).
d. Feed Lot. Grantor shall not establish or maintain a feed lot. For purposes of this
Easement, "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 dump or accumulate 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 purpose of this Easement, 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 or
County for hazardous materials, nor does it make Grantee or County an owner of
the Property, nor does it permit or require Grantee or County 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).
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•
h. Other Restricted Uses. Grantor shall not construct or establish golf courses, sod
farms,helicopter pads, and airstrips.
i. 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), and the County's approval in its sole discretion.
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.
8. Responsibilities of Grantor and Grantee Not Affected. Other than as specified herein,
this Easement 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 Easement 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 Easement. 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
Easement 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 shall be solely responsible for payment of all taxes and
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.
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b. Liability. Grantor shall indemnify, defend, and hold Grantee and the County and
its members, officers, directors, employees, agents, and contractors (collectively,
the "Indemnified Parties")harmless from and against any and all loss, damage,
cost, or expense, including reasonable attorneys' fees, arising from or in any way
related to: (i) injury to or the death of any person, or damage to property,
occurring on or about or related to the Property,unless due solely to the act or
omission of the Indemnified Parties; (ii)the obligations under this Easement; (iii)
the presence or release of hazardous materials on, under, or about the Property;
(iv) the existence of any underground storage tanks on the Property; or(v) the
violation or alleged violation of, or other failure to comply with any state, federal,
or local law, regulation, or requirement, including, without limitation, CERCLA
and state hazardous waste statutes,by any person other than any of the
Indemnified Parties, in any way affecting, involving, or relating to the Property.
Grantee shall indemnify, defend and hold Grantor and its assigns, successors and
heirs harmless from and against any and all loss, cost or expense, including
reasonable attorney's fees, arising from or in any way related to injury to or death
of any person occurring on or about or related to the Property arising out of the
Indemnified Parties' actions on the Property. Nothing herein shall create liability
for County as a result of its contribution to the Property and this Easement.
9. Enforcement.
a. General Provisions. Grantee shall have the right to prevent and correct or
require correction of violations of the terms. If Grantee determines that
immediate entry is required to inspect for,prevent, terminate, or mitigate a
violation of the terms of this Easement, Grantee may enter the Property without
advance notice. If such entry occurs, Grantee shall notify Grantor and the County
within a reasonable time thereafter. If Grantee determines that a violation has
occurred, Grantee shall notify Grantor and County, 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 and County, 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, Grantee may take appropriate legal action, including seeking an
injunction, to stop the alleged violation. County shall have no obligation to
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enforce the terms of this Easement. County may,but is not obligated to,
participate in any mediation pursuant to Section 32.
b. Costs of Enforcement. Any costs incurred by Grantee in enforcing the terms of
this Easement against Grantor, including, without limitation, costs and expenses
of suit, and attorneys' fees necessitated by Grantor's violation of the terms of this
Easement, 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 Easement, the Parties shall each be responsible for their own costs
and attorney fees. Any costs of restoration necessitated by Grantor's violation of
the terms of this Easement, shall be borne by Grantor.
c. Grantee's Discretion. Grantee's remedies described in this Section 9.c 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 Easement and to assume
the responsibility imposed on Grantee by this Easement; (iv) is approved in
writing by Grantor, such approval not to be unreasonably withheld, conditioned or
delayed; and(v) is approved in writing by the County in its sole discretion.
Grantee shall provide Grantor and County with a written request to assign this
Deed at least forty-five(45) days prior to the date proposed for the assignment
transaction.
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 Easement and to assume the responsibility imposed on Grantee
by this Easement, and which has been approved by the County in its sole
14
discretion, 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 0.5% of the current fair market value of
the Property to Grantee to be used for purposes consistent with Grantee's mission.
Grantor agrees to incorporate the terms of this Easement 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 and County in writing within forty-five (45)business days
prior to the transfer of the Property, using the form in Exhibit C attached hereto
and made a part hereof, 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 mission.
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 thirty(30)
day's prior written notice to the County and either(i)prior written approval of the
County; or(ii) a refund to the County prior to or at the time of closing on the Sale,
15
of all or any part of the County's contribution toward the original purchase price
for the Property and this Conservation Easement, as County may determine in its
sole discretion.
12. Condemnation. Grantor shall notify Grantee and County immediately of any
communication or notice received concerning any proposed taking or condemnation
affecting the Property, and Grantee and County shall have the right,but not the
obligation, to participate in any proceedings. Grantee and County may pursue any
remedies in law or in equity, including opposition to the condemnation of the Property.
If the Property or any part thereof or interest therein is sold or conveyed to a condemning
authority under threat of condemnation or taken through condemnation or other
involuntary conversion, Grantee and County shall be entitled to compensation determined
as provided in Section 14.
13. Termination or Extinguishment of Easement. Except as provided in Section 12
(Condemnation), this Easement or any part hereof may only be terminated or
extinguished by judicial proceedings in a court of competent jurisdiction. The only
ground upon which this Easement can be terminated or extinguished is the total loss of all
Conservation Values. If termination or extinguishment occurs, Grantee and County shall
be entitled to compensation determined as provided in Section 14.
14. Compensation upon Condemnation, Termination, or Extinguishment
a. The Parties acknowledge that an appraisal of the Property has been completed that
indicates that the fair market value of the Easement is ninety-one percent(91%)
of the full fair market value of the Property unrestricted by this Easement
("Proportionate Value Percentage"), which percentage shall remain constant
and shall be applied pursuant to Treas. Reg. § 1.170A-14(g)(6)(ii).
b. If the Property is condemned, in whole or in part, as discussed in Section 12, or if
this Easement is terminated or extinguished pursuant to Section 13 (Termination
or Extinguishment of Easement), Grantee shall be entitled to a share of the
proceeds of such action at least equal to the Proportionate Value Percentage of the
full fair market value of the Property unrestricted by this Easement pursuant to
Treas. Reg. § 1.170A-14(g)(6)(ii) ("Grantee's Proceeds"). Any proceeds of such
action other than Grantee's Proceeds shall be defined as "Grantor's Proceeds."
Grantee's Proceeds and Grantor's Proceeds are collectively referred to as
"Proceeds". The first$1,000,000 of any Proceeds shall be remitted by Grantor
and Grantee to the County. Grantor shall not voluntarily accept proceeds equal to
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less than full fair market value of the affected Property unrestricted by this
Easement without the approval of Grantee and County.
c. Grantee's use of its share of such proceeds shall comply with Treas. Reg. §
1.170A-14(g)(6).
d. Grantee's remedies described in this Section shall be cumulative and shall be in
addition to any and 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.
15. Perpetual Duration. This Easement shall be a servitude running with the land in
perpetuity. The provisions of this Easement 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 and County 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 Easement.
18. Grantee's Approval. Where Grantee's approval is required in this Deed, Grantee shall
consult with the County and shall grant or withhold its approval in writing (and provide
the County with a copy of such notice) within thirty(30) calendar days of receipt of
Grantor's written notice thereof. Grantee's decision may be withheld if Grantee is unable
to immediately evaluate the proposed action. Grantor shall not engage in the proposed
17
act or use until Grantor receives Grantee's approval in writing. 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 Easement, and the likely
impact on the Conservation Values. Grantee's approval may be withheld if Grantee
reasonably determines that there is any risk that the activity as proposed is not consistent
with the Purpose. Grantor shall pay any and all costs associated with the evaluation of the
proposed use or activity, including,but not limited to, staff time, legal fees, and resource
specialist fees.
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: Walking Mountains Science Center
318 Walking Mountains Lane
P.O. Box 9469
Avon, Colorado 81620
Grantee: Eagle Valley Land Trust
P.O. Box 3016
Edwards, Colorado 81632
County: Eagle County Open Space
PO Box 850
500 Broadway
Eagle, CO 81631
Phone: 970-328-8698
With a copy to:
Eagle County Attorney's Office
PO Box 850
500 Broadway
Eagle, CO 81631
Phone: 970-328-8685
20. Liens on the Property. No provisions of this Easement 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 Easement.
18
21. 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.
22. 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, and other interests of record.
b. Grantor represents that upon information and belief:
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 of which Grantor is aware; 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 of which Grantor is aware.
23. Acceptance. Grantee hereby accepts without reservation the rights and responsibilities
conveyed by this Deed.
24. General Provisions:
a. Severability. If any provision of this Easement, or the application thereof to any
person or circumstance, is found to be invalid, the remainder of the provisions of
this Easement, or the application of such provision to persons or circumstances
19
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 Easement, and Grantor
waives any rights of Grantor pursuant to such statute.
d. Controlling Law and Interpretation. This Easement 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 Easement. 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 Easement would be appropriate, Grantor and Grantee are free
to jointly amend this Easement; 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(see Treas. Reg. § 1.170A-14(h)(3)(i)) or result in
private inurement for a Board member, staff or contract employee of Grantee(see
Treas. Reg. § 1.501(c)(3)-1(c)(2)), or affect the qualifications of this Easement
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, and shall be
approved by Eagle County in its sole discretion. 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.
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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.
25. Development Rights. Grantor hereby grants to Grantee all development rights associated
with the Property, except as specifically reserved to Grantor herein("Grantee's
Development Rights"), and the Parties agree that Grantee's Development Rights shall be
held by Grantee in perpetuity in order to fulfill the Purpose of this Deed, and to ensure
that such rights are forever released and terminated as to Grantor. Grantee's
Development Rights shall not be utilized by Grantee on or off of the Property.
26. 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.
27. 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 Easement in any third parties except as expressly reserved herein.
28. 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 Easement.
29. 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 Easement. Grantor shall provide a copy of such
documentation at any time upon Grantee's request.
30. 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 Easement.Nothing in this
Section 30 shall modify the restrictions imposed by this Easement or otherwise impair
the preservation and protection of the Conservation Values.
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31. Mediation of Disputes. If Grantee or Grantor has an enforcement dispute as set forth in
Section 9, or if Grantee denies a request by Grantor for approval pursuant to Section 18,
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. County may,but shall have no
obligation to,participate in any mediation.
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
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
22
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.
31. Tax Benefits. Grantor acknowledges that Grantor is responsible for obtaining legal and
accounting counsel to advise Grantor regarding the applicability of federal or state tax
benefits that might arise from the donation of the Easement. Grantee makes no
representation or warranty that Grantor will receive tax benefits for the donation of the
Easement.
32. Authority to Execute. Each party represents to the other that such party has full power
and authority to execute and deliver this Deed, and perform its obligations under this
Easement, that the individual executing this Deed on behalf of said party is fully
empowered and authorized to do so, and that this Deed constitutes a valid and legally
binding obligation of said party enforceable against said party in accordance with its
terms.
33. Effective Date. The"Effective Date" of this Deed shall be the date of its recording in the
County Clerk and Recorder's Office.
34. County as Third Party Beneficiary. Eagle County is not a party to this Deed but is made
an intended express third party beneficiary of all rights,remedies,benefits and privileged
granted to Eagle County herein. Notwithstanding the foregoing, in no event shall Eagle
County's status as an intended and express third party beneficiary hereunder confer any
obligation, duty or other responsibility, whether arising as a matter of law, by contract or
otherwise upon Eagle County unless expressly set forth herein.
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:
WALKING MOUNTAINS, a Colorado non-profit
corporation
By:
Name:
Title:
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this day of
, 2016,by as of Walking
Mountains, a Colorado non-profit corporation d/b/a Walking Mountains Science Center.
Witness my hand and official seal.
My commission expires:
Notary Public
24
GRANTEE:
EAGLE VALLEY LAND TRUST,
a Colorado non-profit corporation
By:
Jim Daus, Executive Director
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this day of
, 2016,by Jim Daus, Executive Director of the Eagle Valley Land Trust, a
Colorado non-profit corporation.
Witness my hand and official seal.
My commission expires:
Notary Public
25
EXHIBIT A
Legal Description of the Property
Lot 2B, Final Plat,
Buck Creek Subdivision, Filing No. 3,
County of Eagle,
State of Colorado
26
EXHIBIT B
Map of the Property
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27
EXHIBIT C
Sample Notice of Transfer of Property
To: Eagle Valley Land Trust ("Grantee")
From: [Insert name of fee owner] ("Grantor")
Pursuant to Section 11 of the Deed of Conservation Easement recorded (date) under
Reception No. , 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 to
be 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
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4 7
T� �R bfi Y
tat
Walking Mountains Science Center
Management Plan
Walking Mountains Science Center ("WMSC") is the current owner of Lot 2B,
Buck Creek Subdivision, Filing No. 3, Town of Avon, County of Eagle, State of
Colorado (the "Property"), generally depicted on Exhibit A attached hereto and
made a part hereof, which contains approximately 3.51 acres of land encumbered
by that certain Deed of Conservation Easement granted to Eagle Valley Land Trust
("EVLT") and recorded on at Reception No. in
the real property records of the Clerk and Recorder's Office of Eagle County,
Colorado (the "Conservation Easement"). Capitalized terms not defined in this
Plan shall have the meanings identified in the Conservation Easement.
The purpose of the Conservation Easement is to preserve and protect the
Conservation Values as that term is defined in the Conservation Easement. The
Conservation Values generally include public recreation and the preservation of
open space (scenic enjoyment of the general public). This management plan (the
"Plan") has been created to outline specific strategies to further protect and
maintain the Conservation Values.
The Property is adjacent to additional land owned by WMSC and used for a
science center and future staff housing, additional land consisting mainly of
floodplain and wetlands (the "Other WMSC Land"), as well as approximately 95
acres of property owned by the Town of Avon and preserved by a conservation
easement granted to Eagle County (the "Avon Northside Parcel").
Acquisition and permanent protection of the Property through the Conservation
Easement and the contemporaneous preservation of the Avon Northside Parcel
were funded in part by a grant from Eagle County, by and through the Eagle
County Open Space Program (the "County"). Any amendment to this
Management Plan must be approved in writing by WMSC, EVLT and the County.
WMSC intends to employ sound management and land conservation practices to
preserve the Property in a natural, scenic and open condition. All use and
management of the Property must be consistent with the terms of the Conservation
Easement.
1
Overall Management: WMSC shall periodically walk the Property to notice any
changes, pick up any found inorganic debris, and take reasonable steps to address
any changes that are noticed that adversely impact the Property's natural condition
and the Conservation Values. WMSC shall otherwise manage the Property for the
uses permitted under the Conservation Easement.
Primary Uses: The Property is owned and managed by Walking Mountains
Science Center, an organization whose primary mission is to "To awaken a sense
of wonder and inspire environmental stewardship and sustainability through
natural science education. Therefore, the primary purpose of the Property is to
provide conservation and science educational programing. These programs
include guided hikes, naturalist programs, and other educational activities designed
to inspire a personal connection to nature. This Plan anticipates that low impact
activities coordinated by WMSC will be the primary use on the Property. These
activities include:
• Hiking/nature walks
• Birdwatching/wildlife watching
• Astronomy
• Educational games and activities; and
• Picnicking
Public Access: As part of the land acquisition effort, the County acquired that
certain Public Access Easement recorded on at Reception No.
in the real property records of the Clerk and Recorder's Office of
Eagle County, Colorado. Public use of the property is permitted pursuant to the
Public Access Easement and other public access is permitted by WMSC provided
such access is not harmful or disruptive to WMSC education programs and
activities and does not cause damage to the natural condition of the Property.
WMSC understands that access is to be denied only as set forth in the Public
Access Easement, if and to the extent that public use meaningfully interferes with
its use of the Property for educational purposes.
Rules and Regulations:
• Property is available to public use sunrise to sunset;
• No fires or fireworks;
2
• No carrying or discharge of firearms or weapons of any kind;
• Dogs must be leashed at all times;
• Dog owners must remove dog waste;
• No music audible to other users;
• No frisbee or frisbee golf;
• No organized games or events without prior approval from WMSC;
• No motorized use is allowed unless contained on Walking Mountains Lane
or used for land management activities undertaken in accordance with this
Plan or the Conservation Easement
Outdoor Teaching Areas: WMSC may establish one or more outdoor teaching
areas that are limited and localized and contain small seating areas of wood chips
or pea gravel and wood benches or rocks or similar installations.
Trails: The County may establish one (1) trail on the Property (the "County
Trail") in accordance with the Public Access Easement, for non-motorized use
except for property management purposes, emergencies, or as otherwise required
by law. The County Trail shall be no more than three feet wide (or wider to
comply with the Americans with Disabilities Act or other pertinent regulations),
and shall contain a soft surface, unless otherwise approved by WMSC and EVLT.
If constructed by the County, the trail shall be maintained by the County, unless
otherwise agreed to in writing by County and WMSC. The location of the County
Trail must be approved by EVLT in accordance with the Conservation Easement.
The Property is subject to an easement for one (1) trail held by the Town of Avon
(the "Town Trail"). The Town of Avon may construct and maintain the Town
Trail in the location identified in the Town's easement, provided that the Town
Trail shall be no more than three feet wide (or wider to comply with American's
with Disabilities Act or other pertinent regulations), and shall contain a soft
surface, unless otherwise approved by WMSC and EVLT. Maintenance of the
Town Trail will be performed by WMSC, unless otherwise agree to in writing
between the Town of Avon and WMSC. Any additional trails are subject to
EVLT's approval as set forth in the Conservation Easement.
Fences: WMSC may maintain and repair existing fences with similar materials.
New fencing shall be constructed to blend in with the natural environment to
protect the scenic view of the Property.
3
Vegetation Management: Noxious weeds present a potentially serious threat to
the Conservation Values of the Property. WMSC shall control weeds on the
Property, including but not limited to, those weeds required to be controlled in
accordance with the State of Colorado's noxious weed lists and Eagle County's
Weed Management Plan. Weed control may be through cultural, mechanical,
biological or chemical methods, as appropriate for the target weed species. If
pesticides or herbicides are applied, WMSC will only use chemicals approved for
the intended application, and will use them in accordance with the specific labeling
instructions to comply with state law. WMSC will monitor the Property to ensure
that weed control efforts, if necessary, are successful and that new populations do
not become established.
Signage: Directional, interpretive and regulatory signage installed in a manner
consistent with the Conservation Easement is permitted. Signage developed by the
County must be approved by EVLT and WMSC, which approval shall not be
unreasonably withheld. Signage developed and installed by WMSC must be
approved by EVLT.
Vehicular Access: Parking is permitted on Walking Mountains Lane, but
otherwise no parking is allowed on the Property. Users are required to park on
Walking Mountains Lane or on the Other WMSC Land and access the Property on
foot.
Plan Update: This Plan will be discussed annually with EVLT and Eagle County
to determine if changes are necessary. Any amendment to the Plan must be
approved in writing by WMSC, EVLT and the County.
Agreed to this day of December, 2016.
Walking Mountains Science Center Eagle Valley Land Trust
By: By:
Markian Feduschak, Jim Daus,
Executive Director Executive Director
Eagle County, Colorado
By:
Jeanne McQueeney, Chair
4
PUBLIC ACCESS EASEMENT
Walking Mountains Science Center-Eagle County
THIS PUBLIC ACCESS EASEMENT(the"Public Access Easement") is granted
this day of December, 2016,by WALKING MOUNTAINS, a Colorado non-profit
corporation, d/b/a WALKING MOUNTAINS SCIENCE CENTER,whose address is 318
Walking Mountains Lane, Avon, Colorado 81620 ("Grantor"), to the COUNTY OF
EAGLE, COLORADO BY AND THROUGH ITS BOARD OF COUNTY
COMMISSIONERS ("Grantee").
RECITALS:
1. Grantor is the record owner of LOT 2B, FINAL PLAT, BUCK CREEK
SUBDIVISION, FILING NO. 3, COUNTY OF EAGLE, STATE OF COLORADO, which is
depicted in the attached Exhibit A(the"Property"). As part of a single transaction, the
Property was encumbered by a Deed of Conservation Easement granted by the Grantor to
Eagle Valley Land Trust, a Colorado nonprofit corporation("EVLT")recorded prior to the
recording of this Public Access Easement(referred to as the"Conservation Easement"),
prior to the recording of this Public Access Easement. The Property is in a relatively natural
condition and features montane meadows, aspen forest, and a wooded riparian corridor along
an approximately 550-foot reach of Buck Creek. As permitted under the terms and provisions
of the Conservation Easement, the Property may be used for passive public recreation and
education including public trails. The Property may also be used by Grantor for outdoor
education as part of the Walking Mountains Science Center.
2. Grantor desires by this instrument to establish and to grant to Grantee the
Public Access Easement for use of the Property in a manner that does not interfere with the
Grantor's educational programming.
3. Grantee desires by this instrument(a)to accept said Public Access Easement
subject to the restrictions set forth herein, and (b) to assume certain responsibilities in
connection therewith.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor and Grantee agree as follows:
1. Grant of Public Access Easement. Grantor hereby grants, transfers and
conveys unto Grantee and its successors and assigns, for the use and benefit of the
general public a perpetual, non-exclusive Public Access Easement, subject to the
limitations, terms and conditions provided herein. Use of the Property shall be
1
Exhibit E
Public Access Easement
Page2of8
exclusively non-motorized except as may be required for Property maintenance,
emergencies or as otherwise required by law.
2. "As Is" Condition. Grantee hereby accepts the condition of this Public
Access Easement in an "as is" condition, subject to the restrictions herein contained,
and subject to all patent or latent defects or problems of any kind or nature. Such
acceptance does not preclude improvement or maintenance activities within the
Property insofar as such activities are allowed or required by this Public Access
Easement or the Conservation Easement.
3. Amendment. This Public Access Easement may only be amended by a
writing signed by Grantee and by the then-record owners of the Property and
recorded in the records of the Eagle County Clerk and Recorder's Office. Any
amendment of this Public Access Easement shall be consistent with the terms of the
Conservation Easement.
4. Property Use Restrictions under Public Access Easement.
(a) Public use of the Property under this Public Access Easement is
restricted as follows:
i. Public use shall be exclusively for low-impact non-motorized
activities such as hiking, picnicking, wildlife watching and
photography.
ii. The Property will be closed to public use from sunset to sunrise
and may be subject to other appropriate closures to public use as agreed
upon by the Grantor and Grantee.
iii. The public is not permitted to have dogs on the Property.
iv. The public is not permitted to have alcoholic beverages on the
Property.
v. The public is prohibited from having fires or fireworks on the
Property.
vi. The public is prohibited from the discharge of weapons on the
Property.
vii. The public is prohibited from hunting on the Property.
viii. Grantor, in its discretion, may temporarily restrict the public
uses allowed by this Public Access Easement without an amendment to
this Access Easement, including limitations on the times and number of
visits, if such restrictions are necessary for the protection of
educational uses, or ecological resources including, but not limited to,
wildlife and vegetation on the Property. Prior to implementation of
2
Public Access Easement
Page 3 of 8
additional restrictions, Grantor will provide to Grantee written notice,
to include the expected duration and the basis for any such additional
restrictions.
(b) The parties acknowledge that there is an existing dirt walking trail
located on the Property easterly of Buck Creek (the easement for the existing trail was
granted to the Town of Avon as described in Phase II Subdivision Improvement
Agreement recorded December 30, 2009 as Reception No. 200927823). The Grantee
may construct a new trail on the Property in a location approved by Grantor and
EVLT under Sections 17 (Grantor's Notice) and 18 (Grantor's Approval) of the
Conservation Easement, with such approval not to be unreasonably withheld (the
"New Trail"). At such time Grantee determines to exercise the right to construct the
New Trail, Grantor agrees to take all actions necessary under the Conservation
Easement to provide notice and receive approval. In the discretion of the Grantor, use
of the Property by the public or certain uses of the Property may be limited to the
trails in the future if necessary for the protection of educational uses, or ecological
resources including, but not limited to, wildlife and vegetation on the Property. Prior
to limiting public use of the Property to the trails, Grantor will provide to Grantee
written notice which shall include the expected duration and the basis for any such
limitation.
(c) The Grantee shall have the right to erect a kiosk on the Property for the
purpose of acknowledging the County's role in protecting the land, subject to the
mutual approval of the Grantor and the Grantee of the size and location of, and
content of materials posted on, the kiosk. Maps of other properties protected by the
County may also be posted as part of the kiosk.
(d) The Grantor retains the right to require that any individual or group of
individuals leave the Property for reasons of non-compliance with the Conservation
Easement or the terms and provisions of this Public Access Easement or if the Grantor
determines that the behavior of an individual or a group of individuals is obnoxious or
otherwise disruptive to other's enjoyment and use of the Property.
(e) New Trail Care and Maintenance. Subject to budget and appropriation
authority, Grantee will be responsible for the construction and maintenance of the
New Trail, at its sole cost and expense, unless the need for maintenance is caused by
Grantor or its invitees, in which case Grantor at its cost shall perform the required
maintenance.
(f) No Charge for Access. Neither Grantee nor Grantor may charge a fee
for access to or use of the Property by the public pursuant to this Public Access
Agreement.
5. Enforcement. Grantor and Grantee reserve the right to monitor and
enforce diligently all covenants and use restrictions set forth herein and all other
applicable rules and regulations. Grantee acknowledges Grantor's expectation that
public access granted herein is limited as described herein.
3
Public Access Easement
Page 4 of 8
6. No Liability. The parties expressly acknowledge that this Public Access
Easement is granted for a "recreational purpose" under C.R.S. Section 33-41-101, et
seq., and that Grantor is entitled to the benefits, protections and limitations on
liability afforded by Colorado law governing recreational easements, including
without limitation said Section 33-41-101, et seq. The parties expressly
acknowledge and agree that Grantee is relying on, and does not waive or intend to
waive by any provision of this Agreement, the monetary limitations or rights,
immunities and protections provided by the Colorado Governmental Immunity Act,
as from time to time amended, or otherwise available to Grantee, its affiliated
entities, successors or assigns, its elected officials, employees, agents and volunteers.
7. Binding Effect. This Public Access Easement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns forever including all future record owners of
the Property, or any part thereof. The benefits and burdens hereof shall also run with
the title to the Property and all parts thereof.
8. Third Party Beneficiaries. This Public Access Easement is entered into
by and between Grantor and Grantee, and is solely for the benefit of the public and
Grantor and Grantee, and does not create any rights or responsibilities, including
enforcement rights, in any party or third parties beyond Grantor and Grantee.
10. Notice. Any notice required by this Access Easement shall be deemed
properly delivered when (i) personally delivered, or (ii) when mailed in the United
States mail, first class postage prepaid, or (iii) when delivered by FedEx or other
comparable courier service, charges prepaid, to the parties at their respective
addresses listed below, or (iv) when sent via facsimile so long as the sending party
can provide facsimile machine or other confirmation showing the date, time and
receiving facsimile number for the transmission, or (v) when transmitted via e-mail
with confirmation of receipt. Either party may change its address for purposes of
this paragraph by giving five (5) days prior written notice of such change to the other
party.
GRANTOR:
Walking Mountains Science Center
318 Walking Mountains Lane
Avon, Colorado 81620
Telephone:
Facsimile:
E-mail:
GRANTEE:
Eagle County, Colorado
Attention: Open Space
500 Broadway
Post Office Box 850
4
Public Access Easement
Page 5 of 8
Eagle, CO 81631
Facsimile: 970-328-85
E-mail: toby.sprunk @eaglecounty.us
With a copy to:
Eagle County Attorney
500 Broadway
Post Office Box 850
Eagle, Co 81631
Telephone: 970-38-8685
Facsimile: 970-328-8699
E-Mail: atty @eaglecounty.us
11. Annual Appropriations. All financial obligations set forth in this
Agreement are subject to annual appropriation pursuant to C.R.S. § 29-1-110, as
amended.
12. Assignment. Neither Grantor nor Grantee may assign any of its rights and
obligations under this Agreement to any other person or entity without the prior written
permission of the other.
13. Warranty of Title. Grantor represents that it is the record owner of the
Property that it has full power and authority to execute this Agreement.
14. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be valid under applicable law; provided, however, if any
provision of this Agreement shall be invalid or prohibited under applicable law, such
provision shall be ineffective to the extent of such invalidity or prohibition without
invalidating the remaining provisions of this Agreement.
15. Recording. Upon execution by the parties, this Agreement shall be recorded
in the records of the Eagle County Clerk and Recorder's Office.
16. Governing Law and Venue. It is the intention of the Parties hereto that all
questions with respect to the construction and interpretation of this Agreement and the rights
and liabilities of the Parties hereunder shall be determined in accordance with the laws of the
State of Colorado.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
as of the day and year first above written.
[Rest of page intentionally left blank]
5
Public Access Easement
Page 6 of 8
GRANTOR:
WALKING MOUNTAINS, a Colorado non-profit corporation, d/b/a WALKING
MOUNTAINS SCIENCE CENTER
By: (sign name)
(print name)
Its: (title)
STATE OF COLORADO )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2016,by as
of Walking Mountains, a Colorado non-profit
corporation, d/b/a Walking Mountains Science Center.
Witness my hand and official seal.
My commission expires:
Notary Public
GRANTEE:
COUNTY OF EAGLE, STATE OF
COLORADO, By and Through Its BOARD OF
COUNTY COMMISSIONERS
By:
Jeanne McQueeney, Chair
Attest:
By:
Regina O'Brien, Clerk to the Board
6
Public Access Easement
Page 7 of 8
EXHIBIT A
MAP OF PROPERTY
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EXHIBIT
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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
Avon Northside Parcels
THIS DEED OF CONSERVATION EASEMENT ("Deed") is granted on this day of
December, 2016,by the TOWN OF AVON, a Colorado municipal corporation, a/k/a Town of
Avon, Colorado ("Grantor"), the address of which is One Lake Street, P.O. Box 975, Avon,
Colorado 81620, to EAGLE COUNTY, COLORADO, a body corporate and politic ("Grantee"),
the address of which is P.O. Box 850, Eagle, Colorado 81631. (Grantor and Grantee are
individually referred to herein as a"Party", and are collectively referred to herein as the
"Parties"). The following exhibits are attached hereto and are incorporated by reference:
Exhibit A: Description of the encumbered portion of Tract B
Exhibit B: Description of Tract C
Exhibit C: Map of the encumbered portion of Tract B
Exhibit D: Map of Tract C
Exhibit E: Baseline Documentation Report
Exhibit F: Sample Notice of Transfer of Property
RECITALS:
A. Description of Property. Grantor is the sole owner in fee simple of
approximately 97.3 acres of real property located in Eagle County, Colorado, more particularly
described in Exhibit A and Exhibit B and depicted in Exhibit C and Exhibit D, all of which are
attached hereto and made a part hereof(the "Property"). The Property is comprised of a 72.7
acres, more or less, of the northerly parcel known as Tract B and the 24.64 acre, more or less,
southeasterly parcel known as Tract C, as shown on Exhibits C and D.
B. Conservation Purposes. The conservation purposes of a qualified conservation
easement 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."
Avon Northside Conservation Easement
DRAFT Dec 14,2016
Page 1 of 30
The Conservation Values of the Property are as follows:
1. Public Recreation or Education. The Property is intended to be used for
passive public recreation and education including, but not limited to, public trails. There
are no formal trails on the Property as of the Effective Date (defined below) ,
althoughthere are some social trails; future trails on the Property will connect with an
extensive trail system on adjoining public lands, enhancing trail system accessibility and
connectivity for the public.
2. Relatively Natural Habitat. The Property supports native sagebrush
shrublands, mixed conifer forest, small areas of aspen and cottonwood stands, and
riparian areas 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 Property's habitat is significant because it provides or potentially provides
habitat for species considered rare, threatened, endangered, or of special concern—
namely bald eagle (a State of Colorado Species of Concern). The Property lies within
bald eagle winter foraging range. The Property also provides: (i) overall range for elk,
including winter concentration, and summer, winter and severe winter range, (ii) overall
range, winter range and migration corridor concentration areas for mule deer, (iii) overall
range for black bear, and (iv) overall range for mountain lion. These big game species
contribute significantly to the biodiversity of the region and to the economy of Eagle
County and the State of Colorado.
3. Open Space. The Property qualifies as open space because it is being
preserved for the scenic enjoyment of the general public and pursuant to clearly
delineated federal, state, and local governmental conservation policies, and will yield a
significant public benefit.
a. Scenic Enjoyment. The Property's preservation will provide
scenic enjoyment to the general public because the Property is in an undeveloped
and natural condition, featuring a mosaic of natural vegetation communities
across dramatic topography. The Property adjoins private owned lands or roads
on all sides. The east parcel adjoins the pending Walking Mountains conservation
easement along Buck Creek, and both parcels adjoin the Mountain Star
conservation easement held by the Town of Avon (Figures 2 and 4 of the Baseline
Documentation Report). All other adjacent lands are in residential duplex or light
industrial or commercial zones or zoned for planned unit development or planned
unit development open space. The Property provides open space near the Town
of Avon. On a landscape scale, the position of the conservation easement will
protect the scenic value and natural, open character of lands around the Town of
Avon in the Eagle Valley. The Property is visually accessible to the public from
Interstate Highway 70, Nottingham Road, Buck Creek Road, and various trails
which are open to and actively utilized by residents of the Town of Avon, Eagle
County and the state of Colorado.
Avon Northside Conservation Easement
DRAFT Dec 14,2016
Page 2 of 30
b. Clearly Delineated Government Conservation Policy. Protection
of the Property furthers the specific objectives of those clearly delineated
government conservation policies set forth in Recitals D and E below.
c. Significant Public Benefit. There is a foreseeable trend of
urbanization and rural subdivision development in the vicinity of the Property and
the surrounding areas within the Town of Avon and 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. Preservation of the
Property will continue to provide an opportunity for the general public to
appreciate its scenic values.
These Conservation Values are of great importance to Grantor, Grantee, the residents of Eagle
County, and the residents of the state of Colorado. It should also be noted that the terms of the
Easement (defined below) do not permit a degree of intrusion or future development that would
interfere with the essential scenic quality of the Property.
D. 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. § 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."
3. 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 . . ."
4. 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.
E. Other Supporting Government Policy.
1. Eagle County Resolution No. 02-123 provides for the creation of an open
space mill levy for the purpose of acquiring, maintaining, or permanently preserving open
space to preserve wildlife habitat, protect working farms and ranches, conserve scenic
Avon Northside Conservation Easement
DRAFT Dec 14,2016
Page 3 of 30
landscapes and vistas, protect wetlands and floodplains, or provide public access points to
rivers and streams.
2. Eagle County Resolution No. 16-064 establishes that certain
characteristics and/or traits make a property worthy of protection through the Open Space
Program, such as and not by way of limitation, fish and wildlife habitat or migration
routes; working farms and ranches; scenic landscapes and vistas; wetlands, floodplains or
other riparian habitat; public access to rivers and streams or lands open to the public;
dispersed recreation; geographic or topographic formations; rare or significant flora or
fauna; cultural historic values; or other natural, open space or conservation values.
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.
6. The Town of Avon Comprehensive Plan states in Goal I.1 that it is a goal
of the Plan to "provide an exceptional system of parks, trails, and recreational programs
to serve the year round leisure needs of area residents and visitors."
F. Baseline Documentation Report. In order to document the condition of the
Property as of the Effective Date, a report has been prepared by Rare Earth Science, LLC and
dated December 5, 2016 (the "Baseline Report"). The Baseline Report contains a natural
resources inventory and also documents the Conservation Values and the characteristics, current
use, and status of improvements on and development of the Property. The Baseline Report is
acknowledged by Grantor and Grantee as an accurate representation of the Property at the time
of the transfer. The Baseline Report has been provided to both Parties, is attached as an exhibit
and incorporated herein by this reference, and may be used by Grantee to assure that any future
changes in the use of the Property will be consistent with the terms of this Easement. However,
the Baseline Report is not intended to preclude the use of other evidence to establish the
condition of the Property as of the Effective Date.
G. Eagle County Open Space. Transaction costs associated with the grant of this
Easement were funded by the Eagle County Open Space Program (the "County").
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 pursuant to the laws of the State of Colorado, Grantor voluntarily grants
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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 ensure that Grantor preserve and
protect in perpetuity the Conservation Values as they exist upon the Effective Date (defined
below) and as they may evolve in the future, in accordance with C.R.S. § 38-30.5-101, et seq.
("Purpose"). To effectuate the Purpose of this Easement, the Parties agree 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 reasonable discretion in accordance with the terms of this Deed.
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 Easement is intended to
compel a specific 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:
A. To preserve and protect the Conservation Values in perpetuity, subject to
and limited by Grantor's reserved rights;
B. To enter upon the Property at reasonable times to monitor Grantor's
compliance with and otherwise enforce the terms of this Easement; provided that, prior to
such entry, Grantee shall first provide at least seven (7) days 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 or the express terms of this Easement and, except as limited by Section 8,
Grantee may require the restoration of such areas or features of the Property that are
damaged by an inconsistent activity or use;
D. To enforce the terms and provisions of this Easement;
E. To place signs on the Property that identify the land as being protected by
this Easement paid for through the use of Eagle County Open Space dollars, provided
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that the size, number, and location of such signs are subject to Grantor's reasonable
approval; and
F. All Development Rights as defined in Section 25 (Development Rights),
except as specifically reserved by Grantor herein. Grantor does not have the right to use
or transfer any Development Rights conveyed to Grantee by this Deed.
Nothing in this Section shall preclude the right of Grantee to enforce the preservation and
protection of the Conservation Values or any other provisions of this Easement.
3. Rights Retained and Reserved 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 such
acts or uses are consistent with the Purpose.
4. No Management Plan. The Parties agree that no management plan is required
for the Property under this Deed.
5. Property Improvements. Improvements, as documented in the Baseline Report
as existing as of the Effective Date may be maintained, repaired and replaced in their current
location. The installation, placement or construction of any other improvement is prohibited
unless expressly permitted by this Section 5.
A. Improvements. Grantor shall have the right to construct new
improvements ("Improvements") on the Property only to the extent described herein,
provided that any surface area disturbed by activity related to Improvements shall be
restored and revegetated by the end of two full growing seasons after completion of such
activity. For the purposes of this sub-section A, "construct" shall include placement,
installation, maintenance, repair and replacement of Improvements.
i. Passive Recreation Improvements. Without further notice to or
approval by Grantee, Grantor may construct the following new improvements:
(a) interpretive and directional signage; (b) wildlife resistant trash collection
containers; (c) picnic tables; (d)benches and seating; (e) trail head parking no
larger than one acre; (f) trail head restroom or sanitation facilities no larger than
500 square feet; and (g) landscaping. With prior written approval of Grantee
pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's Approval), Grantor
may construct trail head parking larger than one and one half acres, restroom
facilities larger than 1,200 square feet and/or appurtenant improvements to the
passive recreation improvements.
ii. Roads. For purposes of this Section, "Roads" shall mean any
existing or new permanent road that is graded, improved or maintained, including
any seasonal unimproved roads and two-track roads. Grantor may only construct
Roads as may be reasonably necessary for the purpose of: (a) utility construction
and maintenance; (b) drainage improvement construction and maintenance; (c)
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slope stabilization work; (d) landscaping; and, (e) revegetation. Grantor shall not
pave or otherwise surface any Road with impervious surfaces except to the
limited extent needed for erosion control. The alignment, width and design of any
Roads shall minimize surface disturbance and minimize any potential erosion.
Prior to construction of any new Road, Grantor agrees to provide at least 30 days
written notice to Grantee.
iii. Trails. For the purposes of this Section "Trails" shall mean any
unimproved or improved path, or unpaved trail constructed or established by
human use,but shall not include trails established by wildlife or livestock.
Grantor may maintain existing social trails and construct up to two miles of
unpaved Trails on the Property, upon notice to, but without further approval of
Grantee. Grantor may construct, maintain and establish additional trails (in
excess of two miles) with the prior written approval of Grantee, which approval
shall not be unreasonably withheld, pursuant to Sections 17 (Grantor's Notice)
and 18 (Grantee's Approval). The surface of the Trails shall be dirt, gravel, rock,
or other natural surface, the width of any Trail tread shall not exceed three (3)
feet, and the Trails may include railings and steps. Permitted uses of the trails
include hiking, running, mountain biking, cross-country skiing, snowshoeing,
equestrian, birdwatching and wildlife viewing, flora viewing, and other passive
recreational and educational uses. Grantor may not permit motorized use of the
Trails by the public. 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. Maintenance if the Trails shall be the
responsibility of Grantor, at Grantor's discretion, sole cost and expense.
iv. Fences. Grantor may maintain, repair and replace existing fences
and construct new fences anywhere on the Property, provided that any new fences
shall be designed and constructed to conform to the then-existing wildlife-friendly
fencing guidance from Colorado Parks and Wildlife (or its successor agency). To
the extent that no such guidance exists, such fences shall be designed to minimize,
to the extent practicable, impacts on wildlife and to adequately exclude livestock
where livestock are present on land adjacent to the Property.
v. Utility Improvements. Existing energy generation or transmission
infrastructure and other existing utility improvements, if any, including but not
limited to: (i) electric power poles, transformers, and lines; and (ii) telephone and
communications towers, poles, and lines("Utility Improvements"), may be
repaired,or replaced with an improvement of similar size and type at their current
locations on the Property and may be further developed or reasonably expanded in
accordance with Section 5.B or as deemed necessary by the utility provider for
emerging technologies that do not negatively impact the Conservation Values
without further permission from Grantee. Grantor shall not otherwise enlarge or
construct any new Utility Improvements, including natural gas pipelines or
renewable energy generation systems, including by not limited to, wind, solar,
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geothermal or hydroelectric unless consistent with the Purpose and approved in
writing by Grantee pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's
Approval). Prior to the enlargement or construction on the Property of any
permitted Utility Improvements permitted under Section 5B , Grantor shall
provide at least 30 days written notice of such construction to Grantee. Following
the repair, replacement, or construction of any Utility Improvements, Grantor
shall promptly restore any disturbed area to a condition consistent with the
Purpose. Any easement, right of way or other interest granted to a third party or
otherwise reserved, to be used for Utility Improvements is subject to Section 7.F
(Easements, Rights of Way or Other Interests).
vi. Underground Utility Improvements. Grantor may construct new
or expanded underground public utility improvements, including reasonable and
customary appurtenant surface improvements not exceeding 500 square feet,
("Underground Utility Improvements") provided that prior to the enlargement
or construction of new Underground Utility Improvements, Grantor shall give
notice to Grantee in accordance with Section 17 (Grantor's Notice) and Grantor
shall receive and consider comments from Grantee to ensure the construction or
expansion of such Underground Utility Improvements is accomplished in a
manner that does not negatively impact Conservation Values. Such notice shall
include complete plans for any Underground Utility Improvements construction
and a plan for restoration of any portion of the Property disturbed by such
construction. Following the construction, expansion or repair of any
Underground Utility Improvements, Grantor shall promptly restore any disturbed
area to a condition consistent with the Purpose. Any easement, right of way or
other interest granted to a third party or otherwise reserved, to be used for Utility
Improvements is subject to Section 7.F (Easements, Rights of Way or Other
Interests).
vii. Drainage Improvements. Grantor may construct new or
expanded drainage and flood control improvements, including but not limited to
grading, impoundments, and control structures. Prior to construction of any new
or expended drainage or flood control improvements, Grantor shall give Grantee
at least 30 days written notice, unless such improvements are intended to respond
to or prevent damage after occurrence identified in Section 35,in which case no
notice is required.
viii. Retaining Walls. Grantor may construct retaining walls for the
purpose of slope stabilization, erosion control, and/or support of any
Improvements permitted in this Sub-Section A. Prior to construction of any new
retaining walls, Grantor shall give Grantee at least 30 days written notice, unless
such improvements are intended to respond to or prevent damage after occurrence
identified in Section 35, in which case no notice is required.
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ix. Signs. Grantor may place and maintain interpretive and directional
signs, provided that such signs do not exceed eight (8) 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).
x. Existing and New Water Features. The maintenance and repair of
existing non-domestic water improvements such as ponds, reservoirs, irrigation
ditches, pipes, headgates, flumes,pumps, or wells, if any, is permitted. The
construction of new water improvements or enlargement of existing water
improvements is permitted upon Grantee's approval pursuant to Sections 17
(Grantor's Notice) and 18 (Grantee's Approval). Any portion of the Property that
is disturbed by the maintenance, repair, construction or enlargement of water
improvements shall be restored to a condition that is consistent with the Purpose
promptly after said activity is completed.
B. Matters of Record. Grantor and/or the beneficiary or grantee of any
easements, rights-of-way, or other instruments of record ("Matters of Record") recorded
as of the date and time this Deed is recorded shall have all rights stated in any such
easement to construct, install, place, relocate, maintain, repair, replace, or expand such
utilities and improvements to the extent set forth in such easement. This Deed shall
neither operate nor be construed to affect, expand, diminish or restrict the rights of any
parties or beneficiaries of any Matters of Record recorded as of the date and time of the
recording of this Deed.
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
and in a manner that is consistent with the Purpose. 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, shall notify Grantor in writing and allow Grantor 30 days to respond. If
Grantor and Grantee are unable to reach an agreement concerning Grantor's resource
management practice(s), Grantee 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 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 construction, maintenance,
and replacement of the improvements permitted by this Easement or for property
management purposes including,but not limited to, maintenance of the Trails, weed
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control, habitat restoration and improvement. 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.
B. Timber. Grantor may cut trees to control insects and disease, to control
invasive species, to prevent personal injury and property damage, and for fire mitigation
purposes including limited and localized tree and vegetation thinning and the creation of
defensible space for permitted improvements. Grantor may also cut dead trees for habitat
improvement and the construction of permitted Improvements and fences on the
Property. Any fire mitigation activities shall be conducted in substantial accordance with
a forest management plan prepared by a professional forester at Grantor's sole cost and
expense, which plan shall be reviewed by Grantee (at Grantee's sole cost and expense),
and shall not be effective unless and until approved by Grantee pursuant to Sections 17
(Grantor's Notice) and 18 (Grantee's Approval).
C. Relatively Natural Habitat. Grantor may conduct any activities to create,
maintain, restore, or enhance wildlife habitat and native biological communities on the
Property, provided that such activities are consistent with the Purpose without Grantee's
approval. If such activities could be inconsistent with the Purpose, , Grantor must first
notify Grantee and obtain Grantee's consent pursuant to Sections 17 (Grantor's Notice)
and 18 (Grantee's Approval).
D. Minerals and Other Deposits. As of the Effective Date, Grantor owns all
of the coal, oil, gas, hydrocarbons, and other minerals (the "Minerals") located on,
under, or in the Property or otherwise associated with the Property. This Easement
expressly prohibits the mining or extraction of Minerals using any surface mining
method. So long as such activity is consistent with the Purpose, Grantor may, with Notice
and Approval of Grantee under Section 17 and Seciton 18,permit subsurface access to
Minerals from locations off the Property, provided that Grantor shall not permit such
subsurface access to disturb the subjacent and lateral support of the Property.
E. Recreation and Education. Grantor may undertake, or permit members
of the public to undertake passive, non-motorized recreation on the Property, provided
such activities are consistent with the Purpose and the restrictions provided herein.
Notwithstanding the foregoing, Grantor may allow motorized access in the manner
otherwise permitted in Section 6.
F. Water Rights. No water rights are encumbered by this Easement.
G. Special Events. Grantor also reserves the right to conduct special events
on the Property, provided such special events are consistent with the Purpose, and the
scale, scope and duration of the special event is not expected to cause impact to the
Conservation Values. Grantor must conduct such special events in a manner that
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minimizes damage to the Conservation Values and promptly and diligently re-vegetates
any disturbed areas with native seed and/or vegetation. Events with expected attendance
of more than 500 people and/or with an expected duration of more than 24 hours require
approval by Grantee pursuant to Section 17 (Grantor's Notice) and Section 18 (Grantee's
Approval).
H. 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 consistent with the Purpose, for
use by the public for purposes permitted by this Deed.
I. Weed Control. 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 a manner consistent with the
Purpose. Grantee has no responsibility for the management of noxious weeds and
invasive plant species.
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.
7. Restricted Practices.
A. Subdivision. Grantor and Grantee agree that the division, subdivision or
de facto subdivision of the entire Property (which includes the non-contiguous northerly
and southeasterly tracts), 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 Easement, regardless of whether the Property now consists of separate
parcels, was acquired as separate parcels, or is treated as separate parcels for property tax
or other purposes. Grantor may own the single parcel by joint tenancy or tenancy in
common, consistent with Section 28 (Joint and Several Liability) and 29 (Ownership by
Single Entity Consisting of Multiple Parties); provided, however, that Grantor shall not
undertake any legal proceeding to partition, subdivide or divide in any manner such
undivided interests in the single parcel.
B. Surface Disturbance. Any alteration of the surface of the land,
including without limitation, the movement, excavation, extraction or removal of soil,
sand, gravel, rock, peat or sod, is prohibited, unless such alteration is associated with
permitted acts on and uses of the Property.
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C. Commercial or Industrial Activity. Grantor shall not conduct or allow
industrial uses on the Property. Grantor shall not conduct or allow commercial uses of
the Property that are inconsistent with the Purpose.
D. Trash. Grantor may not dump or accumulate any kind of trash, sludge, or
refuse on the Property, except for trash contained within wildlife resistant trash
containers.
E. Hazardous Materials. Grantor may use agri-chemicals on the Property in
accordance with all applicable federal, state or local laws. For purposes of this Easement,
"Hazardous Materials" shall mean any"hazardous substance" as defined in §9601(14) of
the Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended ("CERCLA"), "pollutant or contaminant" as defined in § 9601(33) of
CERCLA, or any hazardous waste as defined in C.R.S. §25-15-101(6). 40 C.F.R.
§ 302.4 provides a non-exhaustive list of over 600 substances that qualify as hazardous
substances under CERCLA. The use, treatment, storage, disposal, or release of
Hazardous Materials and/or agri-chemicals shall only be permitted in accordance with
applicable, federal, state and local law and regulations. Without limiting the foregoing,
nothing in this Easement shall be construed as giving rise to any right or ability in
Grantee, nor shall Grantee, have any right or ability, to exercise physical or managerial
control over the day-to-day operations of the Property, or otherwise to become an
operator with respect to the Property within the meaning of CERCLA, as amended.
F. Easements, Rights of Way or Other Interests. Prior to the conveyance or
modification of an easement,right of way or other similar interest for Undergound Utility
Improvments allowed under Section 5A(vi) of this Deed, Grantor shall provide notice to
Grantee pursuant to Sections 17 (Grantor's Notice) and Grantor shall receive and
consider comments from Grantee. The conveyance or modification of an easement, right
of way or other similar interest that is not for an Underground Utility Improvement is
prohibited unless Grantee determines that the proposed conveyance or modification is
consistent with the Purpose,pursuant to Sections 17 (Grantor's Notice) and 18
(Grantee's Approval).
G. Other Restricted Uses. Grantor shall not use the Property for the
construction or operation of developed recreational facilities such as golf courses, athletic
fields, motorized vehicle tracks, equestrian facilities or other non-dispersed types of
recreation, nor may the Property be used for sod farms, helicopter pads, and airstrips.
Grantor shall not allow the Property to be used for hunting or the discharge of weapons
by the public.
H. Telecommunications Facilities. Except as allowed under Section 5B,
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
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Telecommunications Act of 1996, as may be amended) unless Grantee determines that
the proposed facility is consistent with the Purpose pursuant to Sections 17 (Grantor
Notice) and 18 (Grantee's Approval) of this Deed.).
8. Responsibilities of Grantor and Grantee Not Affected. Other than as specified
herein, this Easement is not intended to impose any legal or other responsibility on Grantee, or in
any way to affect any existing obligations of Grantor as owner of the Property. Additionally,
unless otherwise specified below, nothing in this Easement 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. 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 Easement 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 becomes subject to real or personal property taxes or assessments levied
against the Property, Grantor shall continue to be solely responsible for payment of all
taxes and 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 assessor'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, if any, shall not exceed an amount equal to any
limits set forth in the Colorado Governmental Immunity Act now existing or as may
hereafter be amended, nor confer any rights or benefits on any person or activity not a
party to this Agreement. 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. 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. Nothing herein shall create liability for
the Grantee as a result of their contributions to the Property and this Easement.
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
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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, 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 reasonable staff time 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:
i. 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 may request consent and approval of Grantor 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, and(iii) expressly
agrees in writing to abide by the terms of this Easement and to assume the responsibility
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imposed on Grantee by this Easement. Any transfer of this Easement by Grantee shall be
subject to Grantor's prior consent and written approval, which consent and approval shall
not be unreasonably withheld. Grantee shall provide Grantor with a written request to
assign this Easement at least one hundred eighty days (180) days prior to the date
proposed for the assignment transaction.
B. If Grantee ever ceases to exist or no longer qualifies under 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
Easement and to assume the responsibility imposed on Grantee by this Easement,
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. Any time the Property or a portion thereof is transferred by
Grantor to any third party, Grantor shall pay a transfer fee of$500.00 to Grantee to be used for
purposes consistent with Grantee's mission. Grantor agrees to incorporate the terms of this
Easement 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 within fifteen (15) business days after the transfer of the
Property, using the form in Exhibit C attached hereto and 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 mission.
12. Condemnation. Grantor shall notify Grantee immediately of any communication
or notice received concerning any proposed taking or condemnation affecting the Property, and
Grantee shall have the right,but not the obligation, to participate in any proceedings. Grantee
may pursue any remedies in law or in equity, including opposition to the condemnation of the
Property. If the Property or any part thereof or interest therein is sold or conveyed to a
condemning authority under threat of condemnation or taken through condemnation or other
involuntary conversion, Grantee shall be entitled to compensation determined as provided in
Section 14.
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13. Termination or Extinguishment of Easement. Except as provided in Section 12
(Condemnation), this Easement or any part hereof may only be terminated or extinguished by
judicial proceedings in a court of competent jurisdiction. The only ground upon which this
Easement can be terminated or extinguished is the total loss of all Conservation Values. If
termination or extinguishment occurs, Grantee shall not be entitled to compensation..
14. Compensation upon Condemnation.
A. The Parties acknowledge the fair market value of the Easement is seventy-
five percent(75%) of the full fair market value of the Property unrestricted by this
Easement ("Proportionate Value Percentage"), which percentage shall remain constant
and shall be applied pursuant to Treas. Reg. § 1.170A-14(g)(6)(ii).
B. If the Property is condemned, in whole or in part, as discussed in
Section 12, Grantee shall be entitled to a share of the proceeds of such action at least
equal to the Proportionate Value Percentage of the full fair market value of the Property
unrestricted by this Easement pursuant to Treas. Reg. § 1.170A-14(g)(6)(ii), excluding
the value of any improvements. Grantor shall not voluntarily accept proceeds equal to
less than full fair market value of the affected Property unrestricted by this Easement
without the approval of Grantee.
C. Grantee's use of its share of such proceeds shall comply with Treas. Reg.
§ 1.170A-14(g)(6).
D. Grantee's remedies described in this Section shall be cumulative and shall
be in addition to any and 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.
15. Perpetual Duration. This Easement shall be a servitude running with the land in
perpetuity. The provisions of this Easement 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. The fact that any use of the Property that is prohibited
by this Easement, or any other use as determined by Grantee to be inconsistent with the Purpose
of this Easement, may become economically more valuable than permitted uses has been
considered by Grantor in granting this Easement. 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
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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 sixty(60) 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 Easement.
18. Grantee's Approval. Where Grantee's approval is required in this Deed, Grantee
shall grant or withhold its approval, or shall request an additional thirty(30) days for review, in
writing within thirty (30) calendar days of receipt of Grantor's written notice thereof. Grantee
agrees to use best efforts to complete its review and grant or withhold its approval within the
applicable timeframe. Grantor shall not engage in the proposed act or use until Grantor receives
Grantee's approval in writing. 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 Easement, and the likely impact on the Conservation Values. Grantee's approval may be
withheld if Grantee reasonably determines that there is any risk that the activity as proposed is
not consistent with the Purpose. Grantor shall pay any and all costs associated with the
evaluation of the proposed use or activity, including,but not limited to, staff time, legal fees, and
resource specialist fees,provided that Grantee provides prior good faith estimates of such costs
which are approved by Grantor in writing and Grantee provides itemized invoices describing the
work performed, the date such work was performed, and the hourly rate or such other method of
determining the cost.
19. Notices. Any notice that any Party is required to give to the other, in writing shall
be transmitted via U.S. mail, overnight delivery service or served personally 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 Avon
PO Box 975
One Lake Street
Avon, CO 81620
Phone: (970)748-4452
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
PO Box 179
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500 Broadway
Eagle, CO 81631
Phone: 970-328-8698
Also with a copy to:
Eagle County Attorney's Office
PO Box 850
500 Broadway
Eagle, CO 81631
Phone: 970-328-8685
20. Liens on the Property. No provisions of this Easement 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.
21. 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.
22. Grantor's Representations and Warranties.
A. Grantor warrants that Grantor: (i) has good and sufficient title to the
Property, free from all liens and encumbrances securing monetary obligations except ad
valorem property taxes for the current year; (ii) has the right to grant access to the
Property to Grantee for the purposes described in this Easement and has in fact granted
said access to Grantee; and (iii) hereby promises to defend title to the Property against all
claims that may be made against it by any person claiming by, through, or under Grantor.
B. Grantor represents and warrants that, after reasonable investigation and to
the best of its knowledge:
i. No hazardous substance or toxic waste exists nor has been
generated, treated, stored, used, disposed of, deposited, or transported, in, on, or
across the Property, and that there are no underground storage tanks located on
the Property;
ii. Grantor and the Property are in compliance with all federal, state,
and local laws, regulations, and requirements applicable to the Property and its
use;
iii. There is no pending or threatened litigation in any way affecting,
involving, or relating to the Property; and
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iv. No civil or criminal proceedings or investigations have been
instigated at any time or 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.
23. Acceptance. Grantee hereby accepts without reservation the rights and
responsibilities conveyed by this Deed for which no goods or services were exchanged or
provided.
24. General Provisions.
A. Severability. If any provision of this Easement, or the application thereof
to any person or circumstance, is found to be invalid, the remainder of the provisions of
this Easement, 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 Easement, and
Grantor waives any rights of Grantor pursuant to such statute.
D. Controlling Law and Liberal Construction. The provisions of this
Easement are subject to the laws of the United States and the State of Colorado as
amended (or any successor provision then applicable), and the applicable regulations
promulgated thereunder. The provisions of this Easement are to be liberally construed in
favor of the Purpose, and any ambiguities or questions regarding the validity of specific
provisions shall be interpreted in favor of maintaining the Purpose. Any decisions
resolving such ambiguities or questions 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 Deed.
F. Amendment. If circumstances arise under which the Parties each agree in
their respective sole discretion that an amendment to or modification of this Deed would
be appropriate, Grantor and Grantee may mutually amend this Deed; provided that no
amendment shall result in private inurement for a Board member, staff or contract
employee of the Parties, or affect the qualifications of this Easement under CRS 38-30.5-
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101 et seq. or be inconsistent with the preservation and protection of the Conservation
Values set forth herein. Any amendment must be in writing, signed by both Parties, and
recorded in the official records of Eagle County, Colorado.
G. Entire Agreement. This Deed 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.
25. Development Rights. For purposes of this Easement, "Development Rights" are
defined as all present or future rights to (i) construct, place, replace, enlarge, maintain or repair
any improvements on the Property; or (ii) receive credit for density for development on or off the
Property; but not including any rights expressly reserved to Grantor in this Easement, including
but not limited to the right to construct Improvements in Sub-Section S.A. and the rights set
forth in any easements, rights-of-way or other interests of recorded as of the date of recording
this Deed.
26. Recording. Grantor shall record this Deed in 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.
27. 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, other than the County, except as expressly reserved herein.
28. 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 Easement.
29. 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
Easement. Grantor shall provide a copy of such documentation at any time upon Grantee's
request.
30. 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 Easement. Nothing in this Section 30 shall modify the
restrictions imposed by this Easement or otherwise impair the preservation and protection of the
Conservation Values.
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31. 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
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 31 shall prevent Grantee from enforcing
this Deed in accordance with its terms, despite a failure by Grantor to appropriate funds.
32. Authority to Execute. Each party represents to the other that such party has full
power and authority to execute and deliver this Deed, and perform its obligations under this
Easement, that the individual executing this Deed on behalf of said party is fully empowered and
authorized to do so, and that this Deed constitutes a valid and legally binding obligation of said
party enforceable against said party in accordance with its terms.
33. Mediation of Disputes. If Grantee or Grantor has an enforcement dispute as set
forth in Section 9, or if Grantee denies a request by Grantor for approval pursuant to Section 18,
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
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.
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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
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. Each Party shall pay its own costs associated with
mediation, except that Grantor and Grantee shall share the cost of the mediator.
34. 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.
35. Effective Date. The "Effective Date" of this Deed shall be the date of its
recording in the Eagle County Clerk and Recorder's Office.
36. Pre-Approval. Nothing herein shall be construed as an approval or pre-approval
by the County, in its governmental capacity, of any land use application, right or privilege
desired by Grantor.
TO HAVE AND TO HOLD,this Deed of Conservation Easement unto Grantee, its
successors and assigns, forever.
IN WITNESS WHEREOF, Grantor and Grantee,intending to legally bind
themselves, have set their hands on the date first written above.
GRANTOR:
TOWN OF AVON,
a Colorado municipal corporation a/k/a
Town of Avon,Colorado
By:
Name:
Title:
STATE OF COLORADO )
) ss.
COUNTY OF )
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The foregoing instrument was acknowledged before me this day of December,2016,by
, as of the Town of Avon, a Colorado
municipal corporation a/k/a Town of Avon, Colorado.
Witness my hand and official seal.
My commission expires:
Notary Public
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 December,
2016,by Jeanne McQueeney, Chair of Eagle County Board of County Commissioners.
Witness my hand and official seal.
My commission expires:
Notary Public
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•
EXHIBIT A
TRACT `B"
A parcel of land Located in Tract B, described in the final subdivision plat— Amendment No. 4
Benchmark at Beaver Creek of Sections 1 and 2, T5S, R82W of the 6th P.M., in Eagle County,
Colorado.
LEGAL DESCRIPTION
All that part of Tract B, Block 1, in A Resubdivion of Lots 5,52,53,54,55,56,57,69 & Tracts
B,S,T,U,X, and a portion of Tract C — Block 1, A Specially Planned Area Town of Avon, Eagle
County, Colorado described in Final Subdivision Plat—Amendment No. 4 Benchmark at Beaver
Creek Eagle County Colorado recorded June 05, 1982, in Book 337 at Page 367 as Reception
No. 233719 of the records of Eagle County, State of Colorado, described as follows:
Beginning at the Northeast Corner of the NW 1/4 of the SE 1/4 of said Section 1, from which the
C 1/4 of said Section 1 bears N 89° 49' 33" W 1336.90 feet (Basis of Bearing), thence S 00° 19'
33" E 400.00 feet along the East Line of said NW 1/4 of the SE 1/4 of said Section 1;
Thence leaving the East Line of said NW 1/4 of the SE 1/4, S 38° 27' 09" W 1690.76 feet to the
most Northerly Corner of Lot 5 of said Amendment No. 4;
Thence S 61° 33' 13"W 225.43 feet along the Westerly Line of said Lot 5 to an angle point;
Thence continued along said Westerly Line of Lot 5, S 43° 01' 31" W 260.00 feet to an angle
point;
Thence S 59° 08' 32" W 23.55 feet along said Westerly Line of Lot 5 to the Northeasterly
Corner of Lot 51 of said Amendment No. 4;
Thence leaving said Westerly Line of Lot 5, N 75° 58' 23" W 152.36 feet along the Northerly
Line of said Lot 51 to the Northeasterly Corner of Lot 50 of said Amendment No. 4;
Thence N 37° 22' 48"W 140.00 feet along the Northerly Line of said Lot 50 to the Northeasterly
Corner of Lot 49 of said Amendment No. 4;
Thence N 52° 40' 07" W 298.27 feet along the Northerly Line of said Lot 49 and Lot 48 of said
Amendment No. 4 to the Northwesterly Corner thereof;
Thence along the Westerly Line of said Lot 48, S 55° 05' 28" W 320.00 feet to the Northerly
right of way of Nottingham Road;
Thence N 79° 54' 32" W 179.84 feet along said Northerly right of way of Nottingham Road to
the Southeast Corner of Lot 47 of said Amendment No. 4;
Thence N 01° 44' 47" E 41.13 feet along the Easterly Line of said Lot 47 to the Northeasterly
Corner thereof;
Thence N 79° 54' 32" W 930.00 feet along the North Line of Lots 47 and 46 to the
Northwesterly Corner of Lot 46 of said Amendment No. 4;
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Thence leaving said Northerly Lot 46 of said Amendment No. 4, N 84° 17' 19" W 172.00 feet to
the Northeasterly Corner of Lot 45 of said Amendment No. 4;
Thence along the North Line of said Lot 45 and Lot 44, N 82° 33' 34" W 397.14 feet to the
Northeasterly Corner of Lot 43 said Amendment No. 4;
Thence along the North Line of said Lot 43 to the most Northerly point of said Lot 43, N 52° 47'
39"W 95.53 feet;
Thence leaving said North Line of Lot 43, S 73° 55' 27" W 113.22 feet to the Northeasterly
Corner of Lot 70A of said Amendment No. 4;
Thence along the North Line of said Lot 70A and Lot 70 of said Amendment No. 4, N 88° 57'
53" W 499.24 feet to the Northwesterly Corner of said Lot 70;
Thence S 34° 57' 08" E 40.25 feet along the Westerly Line of said Lot 70 to the Northeasterly
Corner of Lot 42 of said Amendment No. 4;
Thence S 80° 32' 44" W 155.00 feet along the North Line of said Lot 42 to the Northwesterly
Corner thereof;
Thence leaving said North Line of Lot 42, S 80° 32' 44" W 110.00 feet to the Northeasterly
Corner of Lot 30 of said Amendment No. 4;
Thence S 80° 32' 44" W 399.89 feet along the North Line of said Lots 30 and 31 of said
Amendment No. 4 to the Northwesterly Corner of said Lot 31;
Thence leaving the North Line of said Lot 31, N 25° 04' 26" W 436.84 feet along the Easterly
Lines of Lot 32 and Lots 34 thru 36 to the Center of the SE 1/4 of said Section 2;
Thence S 89° 17' 27" E 1360.58 feet along the North Line of the SE 1/4 of the SE 1/4 to the
Northwest Corner of the SW 1/4 of the SW 1/4 of said Section 1;
Thence S 89° 48' 00" E 2649.26 feet along the North Line of the S 1/2 of the S 1/2 of said
Section 1 to the Northeast Corner of the SE 1/4 of the SW 1/4 of said Section 1;
Thence N 00° 28' 18" W 1324.86 feet along the West Line of the SE 1/4 to the C 1/4 of said
Section 1;
Thence S 89° 49' 33" E 1336.90 feet along the North Line of the SE 1/4 of said Section 1 to
Northeast Corner of the NW 1/4 of the SE 1/4 of said Section 1 and the POINT OF
BEGINNING.
Total Area=72.7048 acres, more or less.
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EXHIBIT B
TRACT "C"
A description of Tract C, described in the Final Subdivision Plat — Amendment No. 4
Benchmark at Beaver Creek of Sections 1 and 12, T5S, R82W of the 6th P.M., in Eagle County,
Colorado.
LEGAL DESCRIPTION
All of Tract C, as shown in A Resubdivision of Lots 67, 68 and a portion of Tract C, Block 1,
Town of Avon, Eagle County, Colorado described in Final Subdivision Plat—Amendment No. 4
Benchmark at Beaver Creek Eagle County Colorado recorded November 05, 1982, in Book 348
at Page 296 as Reception No. 244637 of the records of Eagle County, State of Colorado.
Total Area=24.64 acres, more or less.
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EXHIBIT C
(Map of portion of Tract B)
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EXHIBIT D
(Map of portion of Tract C)
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EXHIBIT E
(Baseline Report)
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EXHIBIT F
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 No. , 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 to
be 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:
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