TC Ord. No. 2013-01 Accepting the West Avon and Village Parcels in Eagle Valley Land ExchangeTOWN OF AVON
ORDINANCE NO. 13 -01
SERIES OF 2013
AN ORDINANCE ACCEPTING THE WEST AVON AND VILLAGE PARCELS
IN THE EAGLE VALLEY LAND EXCHANGE; GRANTING EASEMENTS TO
HOLY CROSS ENERGY; GRANTING A CONSERVATION EASEMENT ON
THE WEST AVON PARCEL TO EAGLE VALLEY LAND TRUST; APPROVING
AN INTERGOVERNMENTAL AGREEMENT WITH EAGLE COUNTY; AND,
APPROVING AN INTERGOVERNMENTAL AGREEMENT WITH EAGLE
COUNTY AND BERRY CREEK METROPOLITAN DISTRICT
WHEREAS, the White River National Forest - Eagle/Holy Cross Ranger District initiated a
Iti -party land exchange involving Eagle County, the Colorado State Land Board, the Upper
;le Regional Water Authority, and the United States Forest Service ( "Land Exchange ");
WHEREAS, the Town of Avon ( "Town") adopted its support of the multi -party land
exchange and preservation of two parcels of United States Forest Service lands as open space by
adopting Resolution No. 11 -12 A RESOLUTION REPEALING RESOLUTION 11 -09 AND
APPROVING A NEW RESOLUTION BY THE AVON TOWN COUNCIL SUPPORTING A
MULTI -PARTY LAND EXCHANGE LOCATED IN THE WHITE RIVER FOREST IN
EAGLE COUNTY AND RECOMMENDING EXCEPTIONS TO THE CONSERVATION
EASEMENTS ON THE WEST AVON PARCEL AND THE VILLAGE PARCEL and
Resolution No. 12 -14 A RESOLUTION SUPPORTING THE MULTI -PARTY LAND
EXCHANGE LOCATED IN THE WHITE RIVER NATIONAL FOREST IN EAGLE
COUNTY;
WHEREAS, pursuant to the terms of the Land Exchange, the Town is to acquire two parcels
of United States Forest Service lands, grant easements to Holy Cross Energy, grant a
conservation easement to the Eagle Valley Land Trust ( "BVLT "), and enter into several
intergovernm ental agreements with various parties as further described herein;
WHEREAS, and Section 2.1 of the Avon Home Rule Charter provides that the Town
Council may acquire real property and grant interests in real property and Section 16.2 of the
Avon Home Rule Charter authorizes the Town Council to approve intergovernmental
WHEREAS, the Town is acquiring from the United States Forest Service the West Avon
Parcel containing approximately 478.2 acres within the Town of Avon and the East Avon Parcel
(aka the Village Forest Service Parcel), containing approximately 85.99 acres in Eagle County;
WHEREAS, the Town seeks to grant to Holy Cross Energy one Right -of -Way Easement for
electric transmission lines and one Right -of -Way Easement for access to the lines ( "Holy Cross
Easements ") attached hereto as Exhibit C: Holy Cross Right -of -Way Easement and Exhibit
D: Holy Cross Right -of -Way Easement;
Ord. No. 13 -01 Implementing Land Exchange
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I
WHEREAS, the Town seeks to grant to the Eagle Valley Land Trust a conservation
easement on the West Avon Parcel and to execute the conservation easement attached hereto as
Exhibit E: Deed of Conservation Easement West Avon Parcel ( "Conservation Easement ")
and accompanying Management Plan attached hereto as Exhibit F: Management Plan
( "Management Plan ");
WHEREAS, § 38- 30.5 -101, et. seq., Colorado Revised Statutes, provides authority to grant
conservation easements for the protection of open land, environmental quality and life- sustaining
ecological diversity;
WHEREAS, the Town Council finds that granting the Conservation Easement will promote
Goals H.1 and I.1 of the Town of Avon Comprehensive Plan and will thereby promote the
health, safety and general welfare of the Avon community;
WHEREAS, pursuant to §29 -1 -201 and §30 -11 -101, Colorado Revised Statutes, as
amended, Article XIV, Section 18, of the Colorado Constitution, and Section 16.2 of Avon
Home Rule Charter the Town may enter into intergovernmental agreements;
WHEREAS, the Town seeks to execute an intergovernmental agreement with Eagle County,
attached hereto as Exhibit G: Intergovernmental Agreement Between the County of Eagle
and the Town of Avon;
WHEREAS, the Town seeks to execute an intergovernmental agreement with Eagle County,
attached hereto as Exhibit H: Intergovernmental Agreement Between the County of Eagle,
the Town of Avon, and Berry Creek Metropolitan District Regarding Maintenance of West
Avon Property and Related Trails;
WHEREAS, the Town Council finds that all actions in this Ordinance are related to and
necessary for the implementation of the Land Exchange and therefore all actions are confined to
a single subject and this Ordinance is in compliance with Section 6.2 of the Avon Home Rule
Charter;
WHEREAS, a public hearing was conducted in accordance with Section 6.5(d) of the Avon
Home Rule Charter on January 22, 2013 and the Town Council considered all comments prior to
considering final adoption of this Ordinance; and
WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the
Town Council desires to comply the requirements of the Avon Home Rule Charter by setting a
public hearing in order to provide the public an opportunity to present testimony and evidence
regarding the application and that approval of this Ordinance on first reading does not constitute
a representation that the Town Council, or any member of the Town Council, supports, approves,
rejects, or denies this ordinance.
NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF AVON HEREBY
ORDAINS:
Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein
by reference and adopted as findings and determinations of the Town Council.
Ord. No. 13 -01 Implementing Land Exchange
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Section 2. Acceptance of West Avon Parcel and Village Parcel. The Town Council hereby
accepts the conveyance of the West Avon Parcel and the Village Parcel substantially in the form of
the United States Patent attached hereto as Exhibit A: United States Patent for the West Avon
Parcel and Exhibit B: United States Patent for the Village Parcel. The Mayor, Town Manager
and Town Attorney are authorized to review and approve the final form of the patent or patents to
verify that such patent(s) implement the intent of this Ordinance.
Section 3. Grant of Easements to Holy Cross Energy. The Town Council hereby
approves the grant of Holy Cross Energy Right -of -Way Easement and the Holy Cross Energy
Access Right -of -Way Easement attached hereto as Exhibit C: Holy Cross Energy Utility
Right -of -Way Easement and as Exhibit D: Holy Cross Energy Access Right -of -Way
Easement.
Section 4. Grant of Conservation Easement. The Town Council hereby approves the grant
of a conservation easement on the West Avon Parcel in the form attached hereto as Exhibit E:
Deed of Conservation Easement West Avon Parcel. The Mayor, Town Manager and Town
Attorney are authorized to review and approve the final form of legal description and Exhibit D to
the Deed of Conservation Easement West Avon Parcel regarding the list of title exceptions to verify
that the final form of the Deed of Conservation Easement West Avon Parcel implements the intent
of this Ordinance.
Section 5. Approval of Management Plan. The Town Council hereby approves the West
Avon Open Space Management Plan in the form attached hereto as Exhibit F: Management
Plan. The Town Manager is hereby authorized to administratively approve amendments to the
Management Plan in accordance with the terms and procedures for amendments to the
Management Plan as set forth in Section 4 of the Deed of Conservation Easement West Avon
Parcel provided that any such amendments to the Management Plan comply with the Avon
Comprehensive Plan and comply with any trails plan adopted by the Town. Administrative
amendments to the Management Plan shall not require adoption of any ordinance or other action
by the Town Council.
Section 6. Approval of Intergovernmental Agreement with Eagle County. The Town
Council hereby approves the intergovernmental agreement between Eagle County and the Town
in the form attached hereto as Exhibit G: Intergovernmental Agreement Between the County
of Eagle and the Town of Avon.
Section 7. Approval of Intergovernmental Agreement with Eagle County and Berry
Creek Metropolitan District. The Town Council hereby approves the intergovernmental
agreement with Eagle County and Berry Creek Metropolitan District in the form attached hereto
as Exhibit H: Intergovernmental Agreement Between the County of Eagle, the Town of
Avon, and Berry Creek Metropolitan District Regarding Maintenance of West Avon
Property and Related Trails.
Section 8. Mayor and Town Clerk Authorized to Execute Documents. The Mayor and
Town Clerk are authorized to execute documents related to all documents approved in this
Ordinance and take such other actions as may be reasonably necessary to implement the actions
Ord. No. 13 -01 Implementing Land Exchange
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Page 3 of 5
in this Ordinance, including but not limited to designating the order of recording of such
documents and executing other necessary and customary documents at closing which have been
reviewed and approved by the Town Attorney. The Mayor, Town Clerk and Town Attorney
may collectively review and approve the completion of documents, correction of typos,
grammatical errors, cross - reference errors, and revisions which do not alter the substantive terms
of any of the documents approved in this Ordinance.
Section 9. Severability. If any provision of this Ordinance, or the application of
provision to any person or circumstance, is for any reason held to be invalid, such invalidity
not affect other provisions or applications of this Ordinance which can be given effect wit
the invalid provision or application, and to this end the provisions of this Ordinance are decl
to be severable. The Town Council hereby declares that it would have passed this Ordinance
each provision thereof, even though any one of the provisions might be declared unconstituti
or invalid. As used in this Section, the term "provision" means and includes any part, divi:
subdivision, section, subsection, sentence, clause or phrase; the term "application" means
includes an application of an ordinance or any part thereof, whether considered or const
alone or together with another ordinance or ordinances, or part thereof, of the Town.
Section 10. Effective Date. This Ordinance shall take effect thirty days after public
following final passage in accordance with Section 6.4 of the Avon Home Rule Charter.
Section 11. Safely Clause. The Town Council hereby finds, determines and declares that this
Ordinance is promulgated under the general police power of the Town of Avon, that it is
promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary
for the preservation of health and safety and for the protection of public convenience and
welfare. The Town Council further determines that the Ordinance bears a rational relation to the
proper legislative object sought to be obtained.
Section 12. Publication by Posting. The Town Clerk is ordered to publish this Ordinance, by
posting notice of adoption of this Ordinance on final reading by title in at least three public
places within the Town and posting at the office of the Town Clerk, which notice shall contain a
statement that a copy of the ordinance in full is available for public inspection in the office of the
Town Clerk during normal business hours.
[Signature page follows]
Ord. No. 13 -01 Implementing Land Exchange
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INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED
AND REFERRED TO PUBLIC HEARING and setting such public hearing for January 22,
2013 at the Council Chambers of the Avon Municipal Building, located at One Lake Street,
Avon, Colorado, on January 8, 2013.
Published by postid
Clerk at least seven
ATTEST:
�"WN OFq�
ay- s.prior to final
Pa M envy, wn lerk
Rich arroll, Mayor
places in Town and posting at the office of the Town
L by the Town Council.
APPROVED AS TO F -:
Eric J. , Town Attorney
INTRODUCED, FINALLY APPROVED, AND PASSED ON SECOND READING, AND
ORDERED PUBLIS OSTING on January 22, 2013.
�Ow� OFg1"
.' E Ric Carrol , Mayor'
AL-
Published by po 9-.by title in �� le t three public places in Town and posting by title at the
office of the Town lei _
AT ST:
�,u, �cJ
Patty c nny o Clerk
Ord. No. 13 -01 Implementing Land Exchange
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Page 5 of 5
EXHIBIT A:
FORM OF UNITED STATES PATENT
FOR THE WEST AVON PARCEL
EXHIBIT B:
FORM OF UNITED STATES PATENT
FOR THE VILLAGE PARCEL
WHEREAS, Town of Avon, Colorado, a Colorado municipal corporation is entitled to a
patent pursuant to the General Exchange Act of March 20, 1922, (42 State. 465;16 U.S.C. 485),
as amended by the Act of February 28, 1925 (43 Stat. 1090), the Federal Land Policy and
Management act of October 21, 1976, as amended (90 State. 2743; 43 U.S.C. 1715- 1717); and
the Federal Land Exchange Facilitation Act of August 20, 1988 (102 Stat. 1086; 43 U.S.C. 1716
(note), 751 (note) for the following described lands:
Sixth Principal Meridian, Colorado
T. 4 S., R. 82 W.,
sec. 34, SE1 /4SE1 /4
T. 5 S.. R. 82 W..
sec. 2, lots 3 and 4, S1 /2NW1 /4, SW1A
sec. 3, lot 1, SE1 /4NE1 /4 and NE1 /4SE1 /4
containing 478.09 acres. ,
NOW KNOW YE, that there is, therefore, granted by the UNITED STATES unto
Town of Avon, Colorado, a Colorado municipal corporation, the lands above - described; TO
HAVE AND TO HOLD the said lands with all the rights, privileges, immunities, and
appurtenances, of whatsoever nature, thereunto belonging, unto Town of Avon, Colorado, a
Colorado municipal corporation, and to its successors and assigns, forever.
EXCEPTING AND RESERVING TO THE UNITED STATES a right -of -way
thereon for ditches or canals constructed by the authority of the United States. Act of August 30,
1890 (26 Stat. 391; 43 U.S.C. 945).
SUBJECT TO a road easement which crosses a portion of the SE1 /4SE1 /4 of sec. 34, T. 4 S.,
R. 82W., 6th PM issued to BLM on 9 -1 -1961 for June Berry Creek, BLM Serial #C- 069934.
SUBJECT TO an easement issued to Colorado Department of Highways on 10/29/1969,
BLM Serial #C -1129, variable width, 0.4 mile in length across portions of the SWl /4SW1 /4
of sec. 2, T. 5 S., R. 82 W., 6th PM and the NEI /4SE1 /4 of sec. 3, T. 5 S., R. 82 W., 6th PM.
BLM granted R/W for 1 -70 Wolcott-Dowd Junction, Proof of Construction 7/11/1973, Fed
Aid Project #I- 70 -2(9).
SUBJECT TO BLM plats depict railroad right -of -way across the SW1 /4SW1 /4 of sec. 2, T
S., R. 82 W., 6th PM, BLM Serial #C- 093762.
To have and to hold the same premises above granted and described, unto
Town of Avon, Colorado its assigns, forever.
THE UNITED STATES OF AMERICA
By:
Chief, Branch of Lands and Realty, Division of Energy,
Lands and Minerals, Colorado State Office, Bureau of Land
Management U.S. Department of the Interior
DRAFT FORM OF PATENT FOR WEST AVON PARCEL
January 22, 2013 FINAL
EXHIBIT C:
Holy Cross Energy Utility Right -of -Way Easement
WHEREAS, Town of Avon, Colorado, a Colorado municipal corporation is entitled to a
patent pursuant to the General Exchange Act of March 20, 1922, (42 State. 465;16 U.S.C. 485),
as amended by the Act of February 28, 1925 (43 Stat. 1090), the Federal Land Policy and
Management act of October 21, 1976, as amended (90 State. 2743; 43 U.S.C. 1715- 1717); and
the Federal Land Exchange Facilitation Act of August 20, 1988 (102 Stat. 1086; 43 U.S.C. 1716
(note), 751 (note) for the following described lands:
Sixth Principal Meridian, Colorado
Township 5 South, Range 81 West,
Section 8: Lots I and 2
containing 85.99 acres
NOW KNOW YE, that there is, therefore, granted by the UNITED STATES unto
Town of Avon, Colorado, a Colorado municipal corporation, the lands above - described; TO
HAVE AND TO HOLD the said lands with all the rights, privileges, immunities, and
appurtenances, of whatsoever nature, thereunto belonging, unto Town of Avon, Colorado, a
Colorado municipal corporation, and to its successors and assigns, forever.
EXCEPTING AND RESERVING TO THE UNITED STATES a right -of -way
thereon for ditches or canals constructed by the authority of the United States. Act of August 30,
1890 (26 Stat. 391; 43 U.S.C. 945).
SUBJECT TO an easement issued to Colorado Department of Highways on 10/29/1969,
BLM Serial # C -1129, variable width, 0.4 mile in length across portions of Lot 3 of sec.
8, T. 5 S., R. 81 W., 6t" PM. BLM granted R/W for I -70 Wolcott-Dowd Junction, Proof
of Construction 7/11/1973, Fed Aid Project #I- 70 -2(9).
To have and to hold the same premises above granted and described, unto
Town of Avon, Colorado its assigns, forever.
THE UNITED STATES OF AMERICA
By:
Chief, Branch of Lands and Realty, Division of Energy,
Lands and Minerals, Colorado State Office, Bureau of Land
Management U.S. Department of the Interior
DRAFT FORM OF PATENT FOR VILLAGE FOREST SERVICE PARCEL
January 22, 2013 FINAL
HOLY CROSS ENERGY
RIGHT -OF -WAY EASEMENT
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
TOWN OF AVON
(hereinafter called "Grantor "), for a good and valuable consideration, the receipt whereof is hereby acknowledged, does hereby
grant unto Holy Cross Energy, a Colorado corporation whose post office address is P.O. Drawer 2150, Glenwood Springs, Colorado
(hereinafter called "Grantee ") and to its successors and assigns, the right of ingress and egress across lands of Grantor, situate in
the County of Eagle, State of Colorado, described as follows:
A parcel of land situate in the W1 12 of Section 2 and the Eastl /4 of Section 3, Township 5 South, Range 82
West and the SE1 /4 of the SEl /4 of Section 34, Township 4 South, Range 82 West, as more fully described in
Book 331 at Page 978 as recorded in the records of the Eagle County Clerk and Recorder's Office, Eagle, Colorado.
And, to construct, reconstruct, upgrade (provided that any upgrade shall be subject to applicable regulations of The Town of
Avon, including but not limited to 1041 regulations), operate, maintain and remove an electric transmission or distribution line or
system, within the above mentioned lands, upon an easement described as follows:
Two easements for existing transmission power lines as constructed in place.
Each power line easement will be 100' in width, extending 50' in width on either side from center line of the existing
lines as constructed.. The center line of each easement is shown on Exhibit A and
attached hereto and made a part hereof by reference.
The rights herein granted specifically allow Grantee to (1) install down guys with anchors within fifty (50) feet of any pole located
on the above described easement, and, (2) install additional poles, down guys with anchors, overhead conductors and /or related
facilities within the above described easement at any time in the future.
And, in addition, Grantor hereby grants to Grantee, and to its successors and assigns, the right to clear all trees and brush, by
machine work or otherwise, within said easement, and the further right to cut trees, even though outside of said easement, which
are tall enough to strike the wires in falling. In areas where vegetation is disturbed due to Grantee's use of the Easement, Grantee
shall revegetate the disturbed areas using native vegetation.
Grantor agrees that the surface of the ground will not be changed nor will any other alteration be made within the boundaries of
the easement which would violate National Electrical Safety Code requirements for minimum clearance from the power line
conductors.
Grantor agrees that all poles, wire and other facilities installed by Grantee on the above described lands, shall remain the property
of Grantee, and shall be removable at the option of Grantee.
Grantor covenants, against all those claiming against Grantor, that it is the owner of the above described lands and that the said
lands are free and clear of encumbrances and liens of whatsoever character, except those held by the following: All those of
Record.
TO HAVE AND TO HOLD, said right -of -way and easement, together with all and singular, the rights and privileges appertaining
thereto, unto Grantee, its successors and assigns, forever.
IN WITNESS WHEREOF, Grantor has caused these presents to be duly executed on this day of
, 20
The individual signing this Holy Cross Energy Right -of -Way Easement hereby represents that he /she has full power and authority
to sign, execute, and deliver this instrument.
TOWN OF AVON
MAYOR
50 -02 Town of Avon Land Swap 12/11/12 O'Neil/Town of Avon Land Swap vw Page 1 of 2
STATE OF
) ss.
COUNTY OF
The foregoing instrument was acknowledged before me this day of , 20 , by
WITNESS my hand and official seal.
My commission expires:
as Mayor of the TOWN OF AVON.
Address:
Notary Public
50 -02 Town of Avon Land Swap 12/11/12 O'Neil/Town of Avon Land Swap vw Page 2 of 2
EXHIBIT D:
Holy Cross Energy Access Right -of -Way Easement
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HOLY CROSS ENERGY
RIGHT -OF -WAY EASEMENT
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
II lei iT i,Ci1WAMiL
(hereinafter called "Grantor "), for a good and valuable consideration, the receipt whereof is hereby acknowledged, does hereby
grant unto Holy Cross Energy, a Colorado corporation whose post office address is P.O. Box 2150, Glenwood Springs, Colorado
(hereinafter called "Grantee ") and to its successors and assigns, the right of ingress and egress across lands of Grantor, situate in
the County of Eagle, State of Colorado, described as follows:
A parcel of land located in the S1 /2 of section 8, township 5 South, Range 81 West ( "Property ")
Access is granted on a right -of -way easement across said land on an existing road as shown on Exhibit A, and attached hereto
and made a part hereof by reference.
And, in addition, Grantor does hereby grant to Grantee, and to its successors and assigns, the right to maintain the existing road
as needed to access Grantee's facilities.
Grantor does agree that no alteration be made within the easement which would impede access to Grantee's facilities.
Grantor does covenant, against all those claiming under Grantor, that it is the owner of the above described lands and that the
said lands are free and clear of encumbrances and liens of whatsoever character, except those held by the following: All those of
Record.
TO HAVE AND TO HOLD, said right -of- way easement, together with all and singular, the rights and privileges appertaining
thereto, unto Grantee, its successors and assigns, forever.
IN WITNESS WHEREOF, Grantor has caused these presents to be duly executed on this day of
, 20
The individual signing this Holy Cross Energy Right -of -way Easement hereby represents that he /she has full power and authority
to sign, execute, and deliver this instrument.
STATE OF )
COUNTY OF )
) ss.
TOWN OF AVON
MAYOR
The foregoing instrument was acknowledged before me this day of , 20 , by
WITNESS my hand and official seal.
My commission expires:
as Mayor of the TOWN OF AVON.
Address:
Notary Public
EXHIBIT E:
DEED OF CONSERVATION EASEMENT
WEST AVON PARCEL
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
WEST AVON PARCEL
THIS DEED OF CONSERVATION EASEMENT ( "Deed ") is granted this dayll of
2013, by TOWN OF AVON, a home rule municipal corporation of the State
of Colorado, having its address at One Lake Street, P.O. Box 975, Avon, CO 81620,
( "Grantor "), to EAGLE VALLEY LAND TRUST, a Colorado nonprofit corporation, whose
address is P.O. Box 3016, Edwards, Colorado 81632 ( "Grantee ") (Grantor and Grantee care
individually referred to as "Party" and collectively referred to as the "Parties ").
RECITALS:
A. Description of Property. Grantor is the sole owner in fee simple of approximately
478.09 acres of real property located in Eagle County, Colorado, more particularly described in
Exhibit A attached hereto and generally depicted on the map attached hereto as Exhibit B. both
of which are incorporated herein by this reference (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 to hold conservation easements for which a state tax credit
is claimed by the State of Colorado's Division of Real Estate pursuant to C.R.S. § 12 -61 -720,
and Rule A -1 of the Code of Colorado Regulations, Qualifications for Certification to Hold
Conservation Easements (4 C.C.R. 725 -4, Rule A -1). 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 and surrounding areas, 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. Re s. §
1.170A-
14(d), the conservation purposes of a qualified conservation contribution must include one or
more of the following: (1) to preserve land for outdoor recreation by or education of the general
public; (2) to protect relatively natural habitat of fish, wildlife or plants; (3) to preserve open
space; and (4) to preserve historically important land or structures. The conservation purposes
set forth in this Recital C and referred to hereafter in this Deed are collectively referred to as'
"Conservation Values."
The Conservation Values of the Property are as follows:
1. Relatively Natural Habitat [ Treas. Regs. § 1.170A- 14(d)(3)]. The Property features
Conservation Easement EVLT
Jan. 22, 2013 FINAL
Page 1 of 26
sagebrush shrublands and shrubsteppe, pinyon juniper woodlands, small aspen stands,
and montane riparian areas at an average elevation of 7,800 feet in the Eagle River
watershed. June Creek, a perennial stream, flows through the northwest part of the
Property, and an unnamed seasonal stream crosses through the west - central part of the
Property. The Property provides food, shelter, breeding ground, and migration corridors
for a variety of wildlife species, including migratory songbirds, raptors, small mammals,
and big game. The Property provides summer and winter range for mule deer and elk,
overall range for mountain lion, and lies within a summer concentration area for black
bear. The habitat on the Property is significant because it is habitat or potential habitat
for a number of significant species including, winter range and winter foraging range for
the bald eagle (State Species of Concern), wintering habitat for the greater sage grouse
(Candidate for listing under the U.S. Endangered Species Act), suitable breeding habitat
for the northem leopard frog (State Species of Concern) and the presence of the
Harrington penstemon is documented on the Property (a rare endemic plant recognized
by the Colorado Natural Heritage Program as vulnerable).
2. Open Space [ Treas. Regs. § 1.170A- 14(d)(4)]. The Property qualifies as open space
because it is being preserved for the scenic enjoyment of the general public, pursuant to
clearly delineated federal, state or local governmental conservation policies (set forth in
Recitals D and E below), and the Property's preservation will yield:a significant public
benefit.
(i) Scenic enjoyment. The Property features a mosaic of natural vegetation
communities across dramatic topography which adds to the scenic character of the
local rural landscape in which it lies, contains a harmonious variety of shapes and
textures, and provides a degree of openness, contrast and variety to the overall
landscape. A large portion of the Property is visible to the general public traveling
along Interstate 70 which is open to and actively utilized by residents of Eagle County
and the State of Colorado and visitors from across the United States and around the
world. The Property is also visible from U.S. Highway 6, Metcalf Road, Nottingham
Road, and many other public roads around Eagle Valley, all of which are open to and
actively utilized by residents of and visitors to the Town of Avon, Eagle County and
the State of Colorado.
(ii) Significant public benefit. There is a foreseeable trend of intense development in
the vicinity of the Property in the near future, including but not limited to the Town of
Avon, Eagle -Vail, Edwards and Singletree. 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, additional congestion, and loss of open space which
serves as a community separator. Preservation of the Property will continue to
provide an opportunity for the general public to appreciate its scenic values.
It should also be noted that the terms of the Easement do not permit a degree of intrusion
III
or future development that would interfere with the essential scenic quality of the land.
Conservation Easement EVLT
Jan. 22, 2013 FINAL
Page 2 of 26
I
I
3. Recreation or Education [ Treas. Regs. § 1.170A- 14(d)(2)]. The Property is intended to
be used for passive public recreation and education including, but not limited to, public
trails and a parking area. The Property includes a trail system which is interconnected
with the surrounding area.
These Conservation Values are of great importance to Grantor, Grantee, the residents of
Eagle County, and the State of Colorado. It should also be noted that the terms of the 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 . § 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. § 35 -3.5 -101 states, in part, that "it is the declared policy of the state of Colorado
to conserve, protect, and encourage the development and improvement of its agricultural
land for the production of food and other agricultural products."
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 voters of the State of Colorado by adoption of Article XXVII to the Constitution of
the State of Colorado, the legislature of the State of Colorado by adoption of enabling
legislation, and the State Board of the Great Outdoors Colorado Trust Fund, by adopting
and administering competitive grants application and rigorous due diligence review
processes, have established that it is the policy of the State of Colorado and its people to
preserve, protect, enhance and manage the state's wildlife, park, river, trail and open
space heritage, to protect critical wildlife habitats through the acquisition of lands, leases
or easements, and to acquire and manage unique open space and natural areas of
statewide significance.
5. 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.
6. The Western Governors' Association Policy Resolution 08 -21 supports "voluntary
incentive -based methods for preserving open space, maintaining land and water for
agricultural and timber production, wildlife and other values.
E. Other Supporting Government Policy.
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1. Town of Avon Comprehensive Plan Goal H.1 states that it is the goal of the Town to:
"Protect Avon's unique natural setting and its open spaces."
2. Town of Avon Comprehensive Plan Policy H.1.2 provides that it is Town policy to:
"Acquire or otherwise permanently protect important/significant open space."
3. Town of Avon Comprehensive Plan Goal I.1 states that it is the goal of the Town to:
"Provide an exceptional system of parks, trails, and recreational programs to serve the
year -round leisure needs of area residents and visitors."
4. Town of Avon Comprehensive Plan Policy I.1.2 provides that it is Town policy to:
"Acquire parcels or easements for open space, trails, and recreation."
5. Town of Avon Comprehensive Plan Policy I.1.5 provides that it is Town policy to:
"Coordinate with Eagle County and other government and non - profit agencies in
planning, protecting, and managing public open space..."
6. 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.
7. The Eagle County Comprehensive Plan, Policy 3.7.3.d, states that: "Development in
areas critical to the continued well being of Eagle County's wildlife populations should
not be allowed."
8. The Eagle County Comprehensive Plan, Policy 3.7.2.a, states that: "The integrity, quality
and interconnected nature of critical wildlife habitat in Eagle County should be
preserved."
F. Documentation of Present Conditions. Pursuant to Treas. Regs. § 1.170A- 14(g)(5) and
in order to document the condition of the Property as of the date of this Deed, a report has been
prepared by Rare Earth Science and dated October 3, 2012 ( "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
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 the Easement (defined below). However, the Baseline Report is not
intended to preclude the use of other evidence to establish the condition of the Property as of the
date of this Deed.
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G. Grantor further intends, as owner of the Property, to convey to Grantee the right to
preserve and protect the Conservation Values in perpetuity.
H. Grantee agrees by accepting this Easement (defined below) to preserve and protect in
perpetuity the Conservation Values for the benefit of this and future generations.
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 hereby voluntarily grants and conveys to
Grantee and Grantee voluntarily accepts, a perpetual conservation easement in gross over the
Property ( "Easement "), an immediately vested interest in real property defined by C.R.S. § �38-
30.5 -101 et seq., of the nature and character and to the extent hereinafter set forth for the purpose
of preserving and protecting the Conservation Values in perpetuity, subject to and without
affecting, any currently existing easements of record ( "Existing Third Party Easements ").
1. Purpose. The purpose of this Easement is to preserve and protect the Conservation
Values in perpetuity in accordance with I.R.C. § 170(h), Treas. Regs. § 1.170A -14, and C.R.S. §
38- 30.5 -101, et seq. ( "Purpose "). The Parties intend to permit acts on and uses of the Property
that are consistent with the Purpose, and that are not expressly prohibited by this Easement and
to restrict or prohibit acts on and uses of the Property that are not consistent with the Purpose In
this Easement, "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 discretion as a land trust accredited by the Land Trust Alliance and certified by
the State of Colorado's Division of Real Estate pursuant to C.R.S. § 12 -61 -720, and Rule A -I of
the Code of Colorado Regulations, Qualifications for Certification to Hold Conservation
Easements. (4 C.C.R. 725 -4, Rule A -I), as amended. This Easement 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.
2. Rights of Grantee. To accomplish the Purpose of this Easement, the following rights) are
hereby conveyed to Grantee, its employees and its representatives.
a. To preserve and protect the Conservation Values;
b. To enter upon the Property at reasonable times to monitor Grantor's compliance with,
and, to enforce the terms of this Easement; provided that such entry shall be upon prior
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 any inconsistent use, all as set forth more fully herein;
d. To enforce the terms and provisions of this Easement; and
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e. To place signs on the Property that identify the land as being protected by this Easement,
the size, number, and location of which signs are subject to Grantor's reasonable
approval.
Nothing in this Section 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. Grantor retains the right to perform any act on or use of
the Property that is not prohibited or restricted by this Easement, provided that such acts or uses
are', consistent"with the Purpose.
4. Management Plan. Grantor and Grantee have prepared and mutually agreed to a land
management plan (the "Management Plan" or the "Plan ") dated , 2013, 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 issues addressed in the Management Plan or as
otherwise set forth in this Easement. 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 until Grantor has first prepared an amended Management Plan. Grantor
and Grantee shall review the Management Plan at such times as the Parties determine is
appropriate, and the Plan shall be amended if determined necessary by the Parties. Any
amendment to the Management Plan shall be approved by Grantee in accordance with Sections
17 (Grantor's Notice) and 18 (Grantee's Approval). The Town Manager may approve
administratively amendments on behalf of the Grantor provided that any such amendments to the
Plan comply with the Avon Comprehensive Plan and any trails plan adopted by the Town.
5. Property Improvements. Improvements existing as of the date of this Deed are
permitted. The installation, placement, or construction of any other improvement(s) is prohibited
unless expressly permitted by this Section 5.
a. Existing Improvements. At the time of the granting of this Deed, there are no existing
improvements except for fences, trails, stairs, erosion control infrastructure and signage
(as existing improvements are described in the Baseline Report) which may be
maintained, repaired and replaced in their current location.
b. New Improvements. Grantor may place, install and construct the following new
improvements within two (2) building envelopes (collectively, "Building Envelope ")
each not to exceed two (2) acres in size to be designated by Grantor as part of the
Management Plan: trailhead facilities and associated parking areas (including
landscaping berms and landscaping), sheds, restroom facilities, and accessory uses and
structures ( "New Improvements "). Grantor will use reasonable efforts to seek advice,
consultation, input and recommendations of Grantee in matters regarding the location,
construction, replacement or enlargement of the foregoing New Improvements.
Grantee's comments will be incorporated to the extent reasonably practicable as
determined by Grantor. In addition to the foregoing New Improvements, Grantor may
also place, install and construct other similar improvements within the Building Envelope
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if approved by Grantee pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's
Approval) of this Easement.
c. Construction of Buildings and Other Structures. At the time of construction of any
New Improvements, Grantor shall notify Grantee in accordance with Section 17
(Grantor's Notice) of this Easement. Once constructed, Grantor may maintain, repair,
replace and enlarge New Improvements within the Building Envelope.
d. Improvements Outside Building Envelope. Grantor may construct or place anywhere
on the Property unenclosed minor recreational improvements, including but not limited
to: picnic tables, unenclosed shelters, seating areas, interpretive and directional signs,
information kiosks, and wildlife resistant trash containers ( "Minor Improvements "), all
to be constructed in accordance with the Management Plan. Prior to the construction or
placement of any such Minor Improvements, Grantor shall notify Grantee in accordance
with Section 17 (Grantor's Notice) of this Easement. In addition to the foregoing Minor
Improvements, Grantor may also place, install and construct other similar improvements
outside the Building Envelope if approved by Grantee pursuant to Sections 17 (Grantor's
Notice) and 18 (Grantee's Approval) of this Easement.
e. Residential, Recreational, and Commercial Improvements. Under no circumstances
shall any new residential structures be constructed on the Property. Under no
circumstances shall any new recreational building, structure or improvement be built on
the Property, including but not limited to, athletic fields, golf courses or ranges, race
tracks, airstrips, helicopter pads, or shooting ranges, except as specifically reserved in this
Section 5. Under no circumstances shall any new commercial buildings, structures, or
improvements be built on the Property.
L Agricultural Improvements. Except as provided in Section 6.a. below, no agricultural
improvements may be constructed anywhere on the Property.
g. Road Construction and Paving. For purposes of this Section, "Roads" shall mean any
permanent road that is graded, improved or maintained, including any seasonal
unimproved 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) of
this Easement. Grantor shall not pave or otherwise surface any Road without Grantee's
approval pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's Approval) of this
Easement, except as set forth in the Management Plan.
h. Fences. Grantor may repair, replace, move, or remove existing fences and gates, and
construct new fences in accordance with the Management Plan. Grantor may install gates
at various locations in new or existing fences.
i. Utility Improvements. With the exception of Existing Third Party Easements, which
shall be governed by the terms of those Existing Third -Party Easements, and Grantor's
existing utility improvements, if any, including but not limited to: (i) transformers and
power lines; and (ii) telephone lines ( "Utility Improvements "), may be repaired or
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replaced with an improvement of similar size and type at their current locations on the
Property without further permission of Grantee. The construction of renewable energy
generating systems including, but not limited to, wind, solar, geothermal or hydroelectric
(also, "Utility Improvements "), is permitted provided that such activity: (i) is solely for
uses permitted on the Property; (ii) is consistent with the Purpose; and (iii) is approved by
Grantee in accordance with Sections 17 (Grantor's Notice) and 18 (Grantee's Approval)
of this Easement. Grantor may install Utility Improvements needed to serve permitted
improvements and uses within the Building Envelope in accordance with the
Management Plan. 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's Notice) and 18 (Grantee's Approval) of this
Easement. Following the 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 71
j. Signs. Grantor may place and maintain signs on the Property identifying the Existing
Trails (defined below) and New Trails (defined below) and trailheads and public use of
such trails, provided that no individual sign exceeds twelve (12) square feet.
k. Recreational Trails. Use of the Property for the recreational purposes set forth in
Section 6.e. of this Easement is limited to: the existing trails depicted on Exhibit B
( "Existing Trails "); a paved recreation trail with a maximum finished surface width of
ten (10) feet as depicted on Resolution No. 11 -12 including the right to complete
necessary surveys and soils tests, determine the final trail alignment, utilize reasonable
and necessary temporary construction areas adjacent to the trail alignment, and install
necessary retaining walls, drainage improvements and related appurtenances of such
paved trail; and, other new trails approved as part of the Management Plan or otherwise
approved by Grantee pursuant to Section 17 (Grantor's Notice) and 18 (Grantee's
Approval) of this Easement ( "New Trails "). The Management Plan shall set forth
general guidelines for the use and maintenance of the Existing Trails and any New Trails.
The surface of the Existing Trails and any New Trails (not including the maximum ten
(10) foot wide paved trail) shall be dirt, gravel, rock, or other natural surface and the
width of any Existing Trails or New Trails (not including the maximum ten (10) foot
wide paved trail) shall not exceed six (6) feet unless the surface, width or other
characteristic of the trail is stated in the Management Plan, in which case the
Management Plan shall control. Grantor reserves the right to make improvements to
Existing Trails or New Trails as may be required under the law to comply with the
Americans with Disabilities Act ( "ADA ") in accordance with the Management Plan.
ll. Motor Vehicles. Grantor, and any other entity Grantor authorizes, or those with
Existing Third Party Easements, which easements or statutory or common law rights
allow the use of motorized vehicles, may use motorized vehicles, including without
limitation all- terrain vehicles and ranching, agricultural, equipment and construction
i
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vehicles on the Property, provided that such vehicles shall be used only for construction
and property management purposes, including but not limited to, maintenance of trails,
drainage facilities, water facilities, wildlife ponds, and weed control. Notwithstanding
the foregoing, Grantor shall have the right to permit motorized access on the Existing
Trails or on any New Trails in order to comply with the ADA. 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. Disturbances by Existing Third
Parry Easement holders shall be governed by the terms of the Existing Third Party
Easements or statutory or common law rights and obligations; provided, however that
Grantor shall not enter into an agreement permitting Existing Third Party Easement
holders to disturb the Property without requiring restoration of the Property to a condition
as close to its original condition as reasonably practicable. Off road vehicle courses for
snowmobiles, all- terrain vehicles, motorcycles, or other motorized vehicles are
prohibited.
6. Resource Management. Grantor recognizes the importance of good resource
management and stewardship to preserve and protect the Conservation Values. To this end,
Grantor shall conduct the following uses of the Property in accordance with the provisions
below. If Grantee believes any resource management practice(s) are not consistent with the
Purpose, Grantee, in addition to all of its rights under this Easement, may request that the Parties
consult with a mutually agreed upon resource management professional. 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, provided that Grantor is informed of the cost before the resource
management professional is retained.
a. Agriculture. All agricultural uses, if any, shall be conducted using stewardship and
management methods that preserve the natural resources upon which agriculture is based.
Long -term stewardship and management goals include preserving soil productivity,
maintaining natural stream channels, prevent soil erosion, minimizing invasive species,
and avoiding unsustainable livestock grazing practices. Grantor may construct and
maintain agricultural ditches, stock ponds, wells or other agricultural water features.
Notwithstanding the foregoing, agricultural uses shall not interfere with public access on
the Existing Trails or New Trails or other public access permitted by the Management
Plan.
b. Relatively Natural Habitat. Grantor may conduct major habitat management activities
such as removing tamarisk, chaining juniper or sagebrush, and conducting controlled
burns in accordance with the Management Plan.
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, to prevent personal injury and property damage, and for domestic uses on
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the Property such as firewood and construction of permitted Improvements. Grantor may
thin trees and other vegetation to mitigate forest fires, and to maintain a healthy
ecosystem on the Property in accordance with the Management Plan. Commercial
logging is prohibited. Large -scale alteration or removal of native trees, shrubs and other
vegetation from the Property may only occur upon agreement of the Parties.
d. Minerals and Other Deposits. Grantor's current and future ownership of Minerals
(defined below) shall be subject to the provisions of this Section 6.d. Grantor shall not
transfer, lease or otherwise separate any mineral rights, currently owned or later acquired,
from the surface of the Property, or enter into any surface use agreement or other
agreement related to the mineral rights, without the prior approval of Grantee in
accordance with Sections 17 (Grantor's Notice) and 18 (Grantee's Approval) of this
Easement. Grantor shall not permit any filling, excavating, dredging, mining, drilling,
development, exploration for or extraction or removal of any minerals, including but not
limited to, hard rock minerals, coal, oil and gas, uranium, soils, sand, gravel, rock or
other common building and landscaping materials on, under, or in the Property, or
otherwise associated with the Property by any mining method; provided, however, that
Grantor may permit drilling under the Property for exploration or production of oil, gas
or other hydrocarbons utilizing horizontal drilling techniques from one or more drilling
sites located off the Property subject to a no- surface occupancy restriction on the
Property and a covenant to protect the subjacent and lateral support of the Property.
e. 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, equestrian, and cross - country skiing, provided they are
undertaken in accordance with the Management Plan. Notwithstanding the foregoing,
Grantor may allow motorized access in accordance with Section 5.1 of this Easement.
f. 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.
g. Water Rights Included. The Property includes any and all water and water rights, if
any, which were conveyed with the Property to Grantor and beneficially used on the
Property, including surface water rights and groundwater rights, whether tributary,
nontributary or not - nontributary, decreed or undecreed, and all ditches, head gates,
springs, reservoirs, water allotments, water shares and stock certificates, contracts, units,
wells, easements and rights of way associated therewith ( "Water Rights "). The Parties
agree that it is appropriate to include the Water Rights, if any, in this Easement pursuant
to C.R.S. § 38- 30.5 -102. Grantor shall retain and reserve the right to use the Water
Rights or that portion sufficient to maintain and improve the Conservation Values, and
shall not transfer, encumber, lease, sell or otherwise separate the Water Rights from title
to the Property.
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h. Special Events. Grantor also reserves the right to conduct special events on the Property,
provided such special events are approved by Grantee as part of the Management Plan or
are otherwise approved by Grantee pursuant to Sections 17 (Grantor's Notice) and 18
(Grantee's Approval) of this Easement, and provided Grantor conducts such special
events in a manner that minimizes damage to the Conservation Values and promptly and
diligently re- vegetates any disturbed areas with native seed and/or vegetation.
7. Restricted Practices
a. Subdivision. Grantor and Grantee agree that the division, subdivision or de facto
subdivision of the Property, whether by legal or physical process, into two or more
parcels of land or partial or separate interests (including, but not limited to, condominium
interests or the partition of undivided interests) is prohibited. At all times the Property
shall be owned and conveyed as a single parcel which shall be subject to the provisions of
this Easement.
b. Surface Disturbance. Except as otherwise permitted within this Easement, Grantor shall
not alter the surface of the land, including without limitation, moving, excavating or
removing soil, sand, gravel, rock, peat or sod, in a manner that is inconsistent with the
Purpose.
c. Existing Water Features. Except as permitted by this Easement, Grantor shall not alter,
impair, modify or adversely change existing ponds, wetlands or stream channels in a
manner that is inconsistent with the Purpose.
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. Nothing in this Section shall prevent Grantor
from seasonally confining livestock into an area, corral or other facility for warm -up or
feeding, or from leasing pasture for the grazing of livestock owned by others.
e. Commercial or Industrial Activity. Grantor shall not conduct industrial uses of the
Property. Grantor may conduct commercial uses on the Property with Grantee's approval
pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's Approval) of this
Easement.
f. Public Access. Public access shall be regulated by the Grantor in a manner consistent
with the Management Plan. The Parties acknowledge that Grantor intends to permit
access to the Property via the Existing Trails and any New Trails, in accordance with the
Management Plan, for use by the general public for purposes permitted by this Easement.
In the event of any closure of all or a portion of the Property to the general public, the
Property is still subject to Existing Third Party Easements.
g. Trash. The dumping or accumulation of any kind of trash or refuse on the Property,
including but not limited to household trash and hazardous chemicals, is prohibited.
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Limited dumping or accumulation of other farm- related trash and refuse produced on the
Property is permitted, provided that such dumping does not substantially diminish or
impair the Conservation Values, and is confined within a total area less than one - quarter
acre in size at any given time. This Section shall not be interpreted to prevent the storage
of agricultural products and by- products on the Property in accordance with all applicable
government laws and regulations.
h. 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 Easement to the contrary, this prohibition
does not impose any liability on Grantee for hazardous materials, nor does it make
Grantee an owner of the Property, nor does it permit or require Grantee to control any use
of the Property that may result in the treatment, storage, disposal or release of hazardous
materials within the meaning of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended ( "CERCLA ").
i. Easements, Rights of Way or Other Interests. 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's Notice) and 18 (Grantee's Approval) of this Easement.
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 on the Property 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's Notice) and 18 (Grantee's Approval) of this
Easement.
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 the 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 is a tax- exempt entity. However, if Grantor or the Property ever become
subject to real or personal property taxes or assessments levied against the Property,
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(collectively "Taxes "), Grantor shall be solely responsible for payment of all taxes and
assessments levied against the Property and shall furnish Grantee with satisfactory
evidence of payment upon request.
b. 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 act of the Grantee; its
members, directors, officers, employees, agents, or contractors. Liability, if any, of the
Grantor shall not exceed an amount equal to any limits set forth in the Colorado
Governmental Immunity Act, C.R.S. § 24 -10 -101 et seq., 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.
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 prior to execution of
this Easement and at any later time requested by Grantee.
9. Enforcement. If Grantee fmds what it believes is a violation of this Easement, Grantee
shall immediately notify Grantor in writing of the nature of the alleged violation. Upon receipt
of this written notice, Grantor shall discontinue the activity that has caused the alleged violation
and Grantor shall: (a) restore the Property to its condition prior to the violation in a accordance
with a written restoration plan ( "Restoration Plan "); (b) provide a written explanation to
Grantee of the reason why the alleged violation should be permitted; or (c) when violations are
caused by the public or third parties, Grantor shall provide Grantee with a written plan which
discusses the nature of the alleged violation and enforcement options and alternatives (also, a
"Restoration Plan "). If the condition described in clause (a) or (c) above occurs, the
Restoration Plan shall be submitted to Grantee within twenty (20) calendar days after Grantor's
receipt of the Notice of Violation, or within a longer time period if so specified by Grantee in'the
Notice of Violation or agreed to by Grantor and Grantee in writing. If applicable, the
Restoration Plan shall be approved or disapproved by Grantee in writing within thirty (30)
calendar days after its submittal. If Grantee fails to respond in writing within thirty (30) calendar
days after Grantor's submittal to Grantee of a Restoration Plan, the Restoration Plan shall be
deemed approved. Grantor shall begin restoring the Property, or taking steps to address
violations by the public or third parties, in accordance with the Restoration Plan within ten (�0)
calendar days after it is approved or deemed approved by Grantee and diligently pursue such
cure to completion in compliance with the terms of the approved Restoration Plan. If the
condition described in (b) above occurs, both Parties agree to meet within thirty (30) calendar
days or as soon as possible to resolve this difference. If a resolution of this difference cannot be
achieved at the meeting, both Parties agree to meet with a mutually acceptable mediator, to
attempt to resolve the dispute in accordance with Section 32. When, in Grantee's opinion; an
ongoing or imminent violation could irreversibly diminish or impair the Conservation Values of
the Property, Grantee may, at its discretion, take appropriate legal action. Should mediation fail
to resolve the dispute or if more than 120 days has passed since Grantee's receipt of the written
notice of alleged violation, Grantee may, at its discretion, take appropriate legal action. If a court
with jurisdiction determines that a violation is imminent, exists, or has occurred, Grantee may
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gets, an injunction to stop it, temporarily or permanently. A court may also issue an injunction to
require Grantor to restore the Property to its condition prior to the violation. Grantee shall be
entitled to recover damages including, without limitation, damages for the loss of scenic,
aesthetic, recreational or environmental values. Grantee's remedies described in this Section
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.
Grantor shall pay any costs incurred by Grantee in enforcing the terms of this Easement against
Grantor, including, without limitation, costs and expenses of suit, and reasonable attorney's fees
and any costs of restoration necessitated by Grantor's violation of the terms of this Easement. If
a court determines that Grantee is not the prevailing Party in any legal proceeding between the
Parties, after a final order of such court and after all applicable periods of appeals of any such
order, and any reconsiderations or remands related thereto, have expired, each Party shall pay
their own costs. If a court determines that Grantee has acted in bad faith in seeking to enforce
this Easement, after a final order of such court and after all applicable periods of appeals of any
such order, and any reconsiderations or remands related thereto, have expired, Grantee shall pay
Grantor's costs and expenses of suit, and reasonable attorney's fees. Enforcement of the terms
of this Easement shall be at the discretion of Grantee, and 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.
10a Transfer of Easement. Grantee shall have the right to transfer this Easement to any
public agency or private non - profit organization that, at the time of transfer, is a "qualified
organization" under I.R.C. §170(h), and under C.R.S. § §38- 30.5 -101, et seq., and only if the
agency or the organization expressly agrees to abide by the terms of this Easement and to assume
the responsibility imposed on Grantee by this Easement. Grantee shall obtain Eagle County's
and Grantor's consent (and Town of Avon's consent if the Town no longer owns the Property) to
any such transfer in advance of any proposed transfers. The consent required of Eagle County
and Grantor in the preceding sentence shall not be unreasonably withheld. If Grantee ever ceases
to exist or no longer qualifies under federal or state law, a court with jurisdiction shall transfer
this Easement 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
ansfer of Property. Grantor shall incorporate by reference the terms and conditions
ement in any deed or other legal instrument by which it divests itself of any interest in
)rtion of the Property. The failure of Grantor to perform any act required by this
E.11 not impair the validity of this Easement or limit its enforceability in any way. Any
roperty or a portion thereof is transferred by Grantor to any third party, Grantor shall
;fer fee of $500 to Grantee to be used for purposes consistent with Grantee's mission,
such transfer fee shall not apply to any transfer by the original Grantor to a successor.
all notify Grantee and Eagle County (and Town of Avon if the Town no longer owns
ty) in writing within (5) business days after closing using the form in Exhibit C
ereto and made a part of this Deed, and shall attach to the form a copy of the new
deed. Grantee reserves the right to record a notice of transfer fee in the official real
Conservation Easement EVLT
Jan. 22, 2013 FINAL
Page 14 of 26
property records of Eagle County, Colorado. Grantor shall provide Eagle County with written
notice of any intention to transfer or convey the Property at least forty-five (45) days prior to the
date proposed for such transfer or conveyance.
12. Real Property Interest. This Easement constitutes a real property interest immediately
vested in Grantee. Grantor and Grantee agree that this property interest is thirty percent (30 %)
of the full fair market value of the Property (the "Proceeds Percentage "). Pursuant to Treasury
Regulation §1.170A- 14(g)(6)(ii), Grantor and Grantee further agree that this percentage shall
remain constant.
i
13. Termination of Easement. This Easement may only be terminated or extinguished; by
judicial proceedings by a court of competent jurisdiction. The total loss of all the Conservation
Values on the Property is the only grounds under which this Easement can be terminated. If this
Easement is extinguished or terminated, whether in whole or in part, Grantee shall be paid
proceeds equal to the Proceeds Percentage multiplied by the fair market value of the Property.
Grantee's use of the proceeds shall be in a manner consistent with its conservation purpose and
in compliance with Treas. Regs. § 1.170A- I4(g)(6)(i).
14. Eminent Domain. Grantor shall notify Grantee immediately of any communication or
notice received concerning any proposed taking under the power of eminent domain by public,
corporate, quasi - governmental or other authority, or acquisition by such authority through
purchase in lieu of the exercise of eminent domain ( "Condemnation ") affecting the Property,
and Grantee shall have the right to participate in any proceedings as a real property interest
holder. Grantee may pursue any remedies in law or equity, including opposition to the
Condemnation of the Property. If all or any part of the Property is taken by Condemnation,
Grantee shall receive proceeds directly from the authority for any such Condemnation equal to
the Proceeds Percentage multiplied by the total proceeds from such Condemnation.
15. Perpetual Duration. This Easement shall be a servitude running with. the land in
perpetuity. Every provision of this Easement that applies 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 either 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 such 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 Easement 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 14. In addition, the inability
to carry on any or all of the permitted uses, or the unprofitability of doing so, shall not impairl the
validity of this Easement or be considered grounds for its termination or extinguishment pursuant
to Section 14.
17. Grantor's Notice. Where Grantor's notice is required in this Easement, Grantor shall
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Jan. 22, 2013 FINAL
Page 15 of 26
i
notify Grantee in writing not less than thirty (30) calendar days prior to the date Grantor intends
to undertake the activity in question. The written notice shall describe the proposed activity in
sufficient detail (i.e. location, size, scope, design, nature) to allow Grantee to evaluate the
consistency of the proposed activity with the pertinent terms of this Easement.
18. Grantee's Approval. Where Grantee's approval is required in this Easement, Grantee
shall grant or withhold its approval in writing within thirty (30) calendar days of receipt of
Grantor's written notice thereof which must comply with Section 17. As part of its
determination, Grantee shall consider the proposed manner in which the proposed activity will be
conducted, whether it complies with the terms of this Easement, and the likely impact on the
Conservation Values. Grantee's approval may be withheld only if Grantee reasonably
determines that there is a significant risk that the activity as proposed is not consistent with the
Purpose. Grantee may condition its approval on Grantor's acceptance of modifications, which
Grantee reasonably determines makes the proposed activity consistent with the Purpose. Grantee
may request additional information from Grantor during the thirty (30) day period, and Grantee
shall then have an additional thirty (30) days from the receipt of such additional information to
approve or deny Grantor's request in writing. If Grantee does not respond to Grantor's written
request within thirty (30) calendar days of receipt, the request shall be deemed denied, provided
however, that if after expiration of the 30 -day period, Grantor submits a second written request,
and Grantee does not respond within thirty (30) calendar days of receipt of Grantor's second
request, Grantor's request shall be deemed approved. Grantor shall not engage in the proposed
act or use until Grantor receives Grantee's approval in writing (or unless Grantee fails to respond
within thirty (30) calendar days after receipt of Grantor's second request). If Grantor disagrees
with the decision of Grantee, Grantor may appeal the decision through the mediation process set
forth in Section 32.
19. Notices. Any notice, demand, request, consent, approval, or communication that either
Party is required to give to the other in writing shall be either (i) served personally, (ii) sent by
ce4ified first class mail, postage prepaid, (iii) sent via overnight delivery service that provides
proof of delivery, or (iv) sent via 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:
I
Grantor: Town of Avon
One Lake Street
P.O. Box 975
Avon, CO 81620
Attn: Town Manager
Phone: 970 - 748 -4000
Fax: 970 - 949 -9139
Copy to: Town of Avon
One Lake Street
P.O. Box 975
Avon, CO 81620
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Jan. 22, 2013 FINAL
Page 16 of 26
ail
Attn: Town Attorney
Phone: 970-748-4000
Fax: 970-949-9139
Grantee: Eagle Valley Land Trust
P.O. Box 3016
Edwards, CO 81632
Phone: 970 - 748 -7654
Fax: 970-949-1357
Eagle County The Board of County Commissioners Eagle County
P.O. Box 850
Eagle, Colorado 81631
Phone: 970 - 328 -8605
Fax: 970 - 328 -8629
Copy to: Eagle County Attorney
P.O. Box 850
Eagle, Colorado 81631
Phone: 970 - 328 -8685
Fax: 970 - 328 -8699
20. Subsequent Liens on the Property. No provisions of this Easement shall be construed
as impairing the ability of Grantor to use this Property as collateral for subsequent borrowing,
provided that any mortgage or lien arising from such a borrowing shall be subordinate to this
Easement.
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. Special Warranty. Grantor warrants title to the Property against all persons claiming
by, through or under Grantor, subject only to the exceptions to title set forth on Exhibit D
attached hereto and made a part of this Deed.
23. 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.
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Jan. 22, 2013 FINAL
Page 17 of 26
c. No Waiver or Estoppel. Forbearance by Grantee to exercise its rights under this
Easement in the event of a violation of any term shall not be deemed or construed to be a
waiver by Grantee of such term or of any subsequent violation of the same or any other
term of this Easement or of any of Grantee's rights under this Easement. No delay or
omission by Grantee in the exercise of any right or remedy upon any violation by Grantor
shall impair such right or remedy or be construed as a waiver. Grantor hereby waives
any defense of laches, estoppel, or prescription, including the one year statute of
limitations for commencing an action to enforce the terms of a building restriction or to
compel the removal of any building or improvement because of the violation of the same
under C.R.S. § 38 -41 -119, et seq.
d. Controlling Law. The interpretation and performance of this Easement shall be governed
by the laws of the State of Colorado.
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. Liberal Construction. Any general rule of construction to the contrary notwithstanding,
this Easement shall be liberally construed in favor of the grant to effect the Purpose of
this Easement and the policy and purpose of C.R.S. §38- 30.5 -101, et seq. If any provision
in this instrument is found to be ambiguous, an interpretation consistent with the Purpose
of this Easement that would render the provision valid shall be favored over any
interpretation that would render it invalid.
g. Amendment. If circumstances arise under which an amendment to or modification of
this Deed would be appropriate, Grantor and Grantee are free to jointly amend this Deed;
provided that no amendment shall be allowed that will confer a private benefit to Grantor
or any other individual greater than the benefit to the general public (see Treas. Regs.
§1.170A- 14(h)(3)(i)) or result in private inurement for a Board member, staff or contract
employee of Grantee (see Treas. Regs. §1.501(c)(3)4(c)(2)), or affect the qualifications
of this Easement under any applicable laws. Any amendment shall be consistent with
Grantee's policies, must have a 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 the Easement, and shall be approved by
Town of Avon (if Grantor is not Town of Avon). Grantor shall pay any and all of
Grantee's costs, including staff time and attorney fees, associated with any amendment
proposed by Grantor. Any amendment must be in writing, signed by both Parties, and
recorded in the official records of Eagle County, Colorado.
h. Entire Agreement. This instrument sets forth the entire agreement of the Parties with
respect to the Easement and supersedes all prior discussions, negotiations,
understandings, or agreements relating to the Easement, all of which are merged herein.
Joint Obligation. The obligations imposed upon the Grantor and Grantee of this
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Jan. 22, 2013 FINAL
Page 18 of 26
Easement shall be joint and several in the event that more than one entity or individual
holds either interest at any given time.
24. Development Rights. To fulfill the Purpose of this Easement, Grantor hereby conveys
to Grantee all development rights deriving from, based upon or attributable to the Property in any
way ( "Grantee's Development Rights "), except those expressly reserved by Grantor herein,
and the Parties agree that Grantee's Development Rights shall be held by Grantee in perpetuity
in order to fulfill the Purpose of this Easement, and to ensure that such rights are forever
released, terminated and extinguished as to Grantor, and may not be used on or transferred off of
the Property to any other property or used for the purpose of calculating permissible lot yield of
the Property or any other property.
25. Recording. Grantee shall record this instrument in a timely fashion in the official records
of each county in which the Property is situated, and may re- record it at any time as may be
required to preserve its rights in this Easement.
26. No Third Party Beneficiaries or Enforcement. This Easement is entered into by and
between Grantor and Grantee, and is solely for the benefit of Grantor and Grantee and their
respective successors and assigns for the purposes set forth herein, and does not create right' or
responsibilities in any third parties beyond Grantor and Grantee.
27. 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 27 shall modify the
restrictions imposed by this Easement or otherwise impair the preservation and protection of the
Conservation Values.
28. Annual Appropriation. To the extent that any financial obligation of this Easement 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 Easement would be subject to the
requirement that funds for such financial obligation must be appropriated by Grantor. Nothing in
this Easement shall be deemed to be a waiver of any rights that Grantee may have pursuant to
C.R.S. §30 -25 -104. Nothing in this Section 28 shall prevent Grantee from enforcing li the
Easement in accordance with its terms, despite a failure by Grantor to appropriate funds.
29. 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 this Easement, that the individual
executing this Deed on behalf of said Party is fully empowered and authorized to do so, and that
this Easement constitutes a valid and legally binding obligation of said Party enforceable against
said Party in accordance with its terms.
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Page 19 of 26
30.!i Acts Beyond Grantor's Control. Nothing contained in this Easement shall be construed
to entitle Grantee to bring any action against Grantor for any injury to or change in the Property
resulting from causes beyond Grantor's control, including, without limitation, fire, flood, storm,
and earth movement, or from any prudent action taken by Grantor under emergency conditions
to prevent, abate, or mitigate significant injury to the Property resulting from such causes.
Notwithstanding the foregoing, the Grantor shall take reasonable efforts to prevent third parties
from performing, and shall not knowingly allow third parties to perform, any act on or affecting
the Property that is inconsistent with the Purpose of this Easement.
31.' Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs and
liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the
Property, including weed control and eradication and including the maintenance of adequate
comprehensive general liability insurance coverage consistent with the limits set forth in the
Colorado Governmental Immunity Act. Grantor shall keep the Property free of any liens arising
out of any work performed for, materials furnished to, or obligations incurred by Grantor.
32. i Mediation of Disputes Regarding Proposed Activities. If Grantor or Grantee cannot
resolve a dispute regarding an alleged violation of this Easement by Grantor pursuant to Section
9 of this Easement or Grantee denies a request by Grantor for approval pursuant to Section 18 of
this Easement, either Party may request mediation by submitting a written notice to the other
Party. Within ten (10) working days of the receipt of such request, the Parties shall select a
single, trained, and impartial mediator with experience in conservation easements and other land
preservation tools. Mediation shall then proceed in accordance with the following guidelines:
a. Purpose. The purpose of the mediation is to: (i) promote discussion between the Parties;
(ii) assist the Parties to develop and exchange pertinent information concerning the issues
in dispute; and (iii) assist the Parties to develop proposals which will enable them to
arrive at a mutually acceptable resolution of the controversy. The mediation is not
intended to result in any express or de facto modification or amendment of the terms,
conditions, or restrictions of this Easement.
b. Participation. The Parties agree that they will participate in the mediation process in
good faith and expeditiously, attending all sessions scheduled by the mediator.
Representatives of the Parties with settlement authority will attend mediation sessions as
required by the mediator.
c. Confidentiality. All information presented to the mediator shall be deemed confidential
and shall be disclosed by the mediator only with the consent of the Parties or their
respective counsel. The mediator shall not be subject to subpoena by any Party. No
statements made or documents prepared for mediation sessions shall be disclosed in any
subsequent proceedings or construed as an admission of a Party in accordance with
Colorado Rules of Evidence, Rule 408.
d. Time Period. Neither Party shall be obligated to continue the mediation process beyond
a period of sixty (60) calendar 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
Conservation Easement EVLT
Jan. 22, 2013 FINAL
Page 20 of 26
I
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 equally the costs of the mediator.
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.
Attest:
Patty McKenny, Town Clerk
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
GRANTOR:
THE TOWN OF AVON
Rich Carroll, Mayor
The foregoing instrument was acknowledged before me this
2013, by Rich Carroll, Mayor of the Town of Avon.
WITNESS MY HAND AND OFFICIAL SEAL.
NOTARY PUBLIC
My commission expires:
Conservation Easement EVLT
Jan. 22, 2013 FINAL
Page 21 of 26
day of
GRANTEE:
EAGLE VALLEY LAND TRUST,
a Colorado nonprofit corporation
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
Kara Heide, Executive Director
The foregoing instrument was acknowledged before me this day of ,
2013, by Kara Heide, as Executive Director of Eagle Valley Land Trust, a Colorado nonprofit
corporation.
WITNESS MY HAND AND OFFICIAL SEAL.
NOTARY PUBLIC
My commission expires:
II
it
i
it
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Jan. 22, 2013 FINAL
Page 22 of 26
EXHIBIT A
Legal Description of the Property
Lots 3 and 4, the S1 /2 NW 1/4, and the SW 1/4 of Section 2, Township 5 South, Range 82 West
of the 6th Principal Meridian, County of Eagle, State of Colorado, according to the Dependent
Resurvey of said Township and Range, accepted September 7, 1977 by the United States
Department of the Interior, Bureau of Land Management.
Excepting Parcels No. 33 and No. 37 Project No. I- 70 -2(9) Wolcott-Dowd Junction dated July
11, 1973, Colorado Department of Highways.
And
Lot 1, the SE 1/4 NE 1/4, and NE 1/4 SE 1/4 of Section 3, Township 5 South, Range 82 West of
the 6th Principal Meridian, County of Eagle, State of Colorado, according to the Dependent
Resurvey of said Township and Range, accepted September 7, 1977 by the United States
Department of the Interior, Bureau of Land Management.
Excepting Parcel No. 31 Project No. I- 70 -2(9) Wolcott-Dowd Junction dated July 11, 1973,
Colorado Department of Highways.
And
The SE 1/4 SE 1/4 of Section 34, Township 4 South, Range 82 West of the 6th Principal
Meridian, County of Eagle, State of Colorado, according to the Survey of said Township and
Range, accepted December 28, 1882 by the Surveyor General of Colorado and according to the
Dependent Resurvey of said Township and Range, accepted September 7, 1977 by the United
States Department of the Interior Bureau of Land Management.
Containing approximately 469 acres more or less.
Conservation Easement EVLT
Jan. 22, 2013 FINAL
Page 23 of 26
EXHIBIT B
Map of the Property
Bing Maps Hybrid Aerial from ESPI
Portion of Eagle County, Colorado, Mosaic
Approximate Scale 1 11.220
All Locations Approximate
RARE EARIlk SCIENCE
PO Box 1245
Paonia, Colorado 81428
(970) 527 -8445
davm0rareearrhscience.com
Conservation Easement EVLT
Jan. 22, 2013 FINAL
Q West Avon Parcel CE c a High�voftage powerhne
June Creek _
== Old road
- Intermittent stream
Forest system trail
0 gg game ramp -:
^. Social (bandit) trail
PubhC trailhead
* —Big 9 e fence
1_ - p, "Porr - _.
" ' -^ Dilapidated barbed wire fenco
-w Survey monument
IMPROVEMENTS &
SELECTED FEATURES
WEST AVON PARCEL
BASELINE DOCUMENTATION REPORT
Eagle County, Colorado
Page 24 of 26
FIGURE
4
EXHIBIT C
Sample Notice of Transfer of Property
To: Eagle Valley Land Trust ( "Grantee ")
From: [Insert name of fee owner] ( "Grantor ")
Pursuant to Section l l of the Deed of Conservation Easement recorded (date) under
reception number , Grantee is hereby notified by Grantor of the transfer of the fee
simple interest in the subject Property legally described in Exhibit A attached hereto effective
[insert date of closing] to [insert name of new Grantor], who can be reached at [insert name,
legal address, phone and fax number]. Also pursuant to Section 11 of the aforementioned
Deed of Conservation Easement, a copy of the new ownership deed is attached.
GRANTOR:
By:_
Title:
STATE OF COLORADO )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this
, 20_, by as
Witness my hand and official seal.
My commission expires:
Date:
Conservation Easement EVLT
Jan. 22, 2013 FINAL
Notary Public
Page 25 of 26
of
day of
EXHIBIT D
Exceptions to Title
1. Any water rights or claims or title to water in, on or under the land, whether of record or
not.
2. Rights of the public in and to any roads upon subject property.
3. Easements, conditions, covenants, restrictions, reservations and notes on the Annexation
Map #4 recorded November 13, 1981 in Book 331 at Page 978.
4. Terms, conditions, provisions, burdens and obligations as set forth in Ordinance #81 -34,
series of 1981 recorded November 13, 1981 in Book 331 at Page 981.
5. Terms, conditions, provisions, burdens and obligations as set forth in Underground
Facilities Information recorded July 01, 1985 in Book 418 at Page 708.
6. Terms, conditions, provisions, burdens and obligations as set forth in Resolution #92 -109
recorded October 21, 1992 in book 592 at page 55.
7. Any tax, lien, fee, or assessment by reason of inclusion of subject property in the Western
Eagle County Metropolitan Recreation District, as evidenced by instrument recorded
March 04, 2004, under Reception No. 869897.
8. Terms, conditions, provisions, burdens and obligations as set forth in Resolution #002
recorded January 03, 2012 under Reception No. 201200099.
9. Terms, reservations, conditions, provisions, burdens, obligations and easements as set
forth in United States Patent recorded under Reception No.
10. Holy Cross Right -of -Way Easement recorded under Reception No.
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Page 26 of 26
W14I11:1v w IF
MANAGEMENT PLAN
West Avon Open Space
Management Plan
Landowner: Town of Avon
Conservation Easement Holder: Eagle Valley Land Trust
Dated: January 22, 2013
Management Plan — West Avon Parcel
Jan. 22, 2013 FINAL
Page 1 of 10
OVERVIEW_
Wildlife, open space, and habitat are significant factors in the quality of life enjoyed', by
residents of the Town of Avon ( "Town ") and Eagle County ( "County "). The presence of
various species of wildlife and their associated habitats provides numerous biological, economic
and recreational benefits to our community.
The West Avon Parcel ( "Property ") possesses significant ecological, habitat and open space
values. The Property qualifies as open space because it will be preserved for the scenic
enjoyment of the general public and will be accessible to the public for passive recreation and
educational purposes, which will yield a significant public benefit.
PURPOSE:
The Town acquired the Property as part of a United State Forest Service multi -party land
exchange initiated by the White River National Forest - Eagle/Holy Cross Ranger District
( "Land Exchange "). The goal of the Land Exchange was to protect the conservation values of
the land and to provide public recreational access to the Property. The conservation values of the
Property are more fully defined in the conservation easement and baseline report and include
open space, outdoor recreation, buffering and natural separation between communities, education
opportunities for the public and relatively natural habitat. In an effort to ensure that the land will
be protected in perpetuity, the Town granted a conservation easement ( "Conservation
Easement ") to the Eagle Valley Land Trust ( "EVLT'
This Land Management Plan ( "Plan ") provides for the present and future management of the
Property. Capitalized terms used in this Plan, not defined herein, shall have the meaning'I set
forth in the Conservation Easement. To the extent the provisions of this Plan conflict with the
provisions of the Conservation Easement, the Conservation Easement shall control.
BACKGROUND:
The Property consists of approximately 478 acres located in the Town contiguous to lthe
Wildridge Subdivision and Singletree Community. The Property was part of the Land Exchange
involving Eagle County, the Colorado State Land Board, the Upper Eagle Regional Water
Authority and the White River National Forest - Eagle/Holy Cross Ranger District of the United
States National Forest Service. Acquisition of the Property was completed on , 2013 with
initial funding from the Eagle County General Fund and Town General Fund.
Management Plan — West Avon Parcel
Jan. 22, 2013 FINAL
Page 2 of 10
MANAGEMENT MISSION STATEMENT:
To manage the Property for the purpose of preserving and protecting the conservation values
while providing compatible outdoor recreation opportunities, including trails for hiking,
mountain biking, and horseback riding, all in accordance with the Conservation Easement and
this Plan.
I
USE AND MANAGEMENT:
creational trails are a primary public benefit of the Property. The Property will be a
"destination open space" for Town and County residents, but Town residents will
the majority of users. These users will include, but will not be limited to, hikers,
ig- walkers, mountain bikers, and equestrians.
dy there is a mix of informal social trails, recently improved multi -use single -track,
ccess roads used for access to construct power line infrastructure. The network has
over the past couple of decades with little formal planning, and non - maintained trails
ed in erosion issues. The 2007 USDA Decision Memo for Singletree and West Avon
Trails may be used as a source document in evaluating any future tr ail uses.
Improvements needed include erosion control work such as water bars, or grade dips to
1ciently protect the integrity of the trails. Realignments will be necessary is some locations
to the steepness of topography. The Beaver Creek Lookout Trail may be improved with a
;her -fine or paved path to the trail terminus in order to provide American with Disabilities
( "ADA ") access. In most cases, trail width should not exceed 36 inches and should remain
iral with the exception of ADA compliance for any trail identified for ADA access.
Trail improvement and maintenance work will generally rely on use of hand tools and
perhaps small machines, such as a 48 inch wide mini- excavator or Trail Dozer. Heavy
equipment should be avoided for trail maintenance due to the inherent impacts to the habitat and
vegetation. Where heavy equipment is necessary for trail maintenance, construction or
reconstruction by the Town, the Town or its representatives shall ensure that any damage to the
Property created by the heavy equipment shall be restored as near as is practical to the original
condition.
No motorized use of the trails will be allowed unless it specifically involves the Town or
contractors conducting approved management of the Property, such as fence repair, weed
control, or trail maintenance. In addition, as set forth in the Conservation Easement some third
parties may have the right to access the Property under existing easements or applicable law.
The width and surface of the trails is set forth in the Conservation Easement. At this time the
Town does not plan to build any new trails. Prior to the Town's construction of any new trails,
Town and EVLT will amend this Plan.
II
Management Plan — West Avon Parcel
Jan. 22, 2013 FINAL
Page 3 of 10
The Town will consult with County via a separate agreement to cooperatively and mutually
determine whether additional maintenance, if any, is necessary or desired, for the upkeep of the
trails and /or the Property.
Building Envelopes: The location of the two (2), two (2) acre building envelopes permitted in
the Conservation Easement shall be agreed upon mutually by the Town and EVLT and
documented in an amendment to this Plan (each, a "Building Envelope ").
Trailheads: The trailheads will be located in the following locations: (1) Nottingham Road cul-
de -sac adjacent to Interstate 70; (2) West side of Beaver Creek Point Road accessed from Block
1 of the Wildridge Subdivision; (3) O'Neal Spur Pocket Park in Block 2 of the Wildridge
Subdivision; and (4) Lot 1, Block 2, Berry Creek Ranch Subdivision (aka Singletree Access).
Advanced notice of intent to pave trailhead parking lots will be provided to EVLT.
1. Nottingham Road. The trailhead is located on Town right -of -way on the south side of
the Nottingham Road cul -de -sac, approximately 750 feet west of the intersection with
Metcalf Road. This access point will be improved to prevent or mitigate future debris
flow issues that stem from hillside to the north. Signage will be installed describing the
"non- motorized" status of the trail. If necessary, post and rail fence will be installed to
prevent mechanized vehicles from accessing the Property. Signage and trash receptacles
will be provided.
2. Beaver Creek Point. This trailhead will be accessed from the west side of Beaver Creek
Point Road, at the midway point in the road. It will accommodate 3 to 5 cars and will be
surfaced with asphalt or other approved material by the Town Engineer. Prior to the
construction of the parking lot, the Town and EVLT will amend this Plan to establish the
location of a Building Envelope within which the parking lot and other permitted
structures may be located. A split rail fence will likely define the area to avoid motorized
access. Signage and trash receptacles will be provided.
3. O'Neal Spur Pocket Park. A trailhead can be established from the existing O'Neal
Spur Pocket Park at the intersection of Old Trail and O'Neal Spur roads in Wildridge.
There are existing on street parking spaces and park facilities. This trailhead will be
utilized only in the event a path is constructed to connect Wildridge with Nottingham
Road.
4. Singletree Access. In 2003, the Berry Creek Metropolitan district purchased this
property in order to provide access to the planned trail network. This access point is
located at 701 June Creek Drive on the eastern edge of the Singletree Community in
Eagle County. Split rail fence was installed to prevent mechanized vehicles from
accessing the Property. Signage was also installed to notify trail users of its "non -
motorized" status.
Parking: Two additional formal parking areas are envisioned for the Property. There will be 3 -5
parallel parking spaces added near the cul -de -sac on Nottingham Road immediately adjacent to
Management Plan — West Avon Parcel
Jan. 22, 2013 FINAL
Page 4 of 10
the trailhead. Additionally, a 3 -5 car parking area will be installed on Beaver Creek Point. Prior
to the construction of any parking lot, the Town and EVLT will amend this Plan to establish the
location of one or more Building Envelopes within which a parking lot and other permitted
structures may be located.
Trashcans: Wildlife -proof containers will be installed on the Property at the Beaver Creek
Point parking area and the Nottingham Road trailhead. The receptacles will be emptied by Town
Staff. Additional wildlife -proof receptacles will be added as necessary based upon use and needs
identified on the Property.
Dog Bag Dispensers: It is anticipated that many users will visit the Property with dogs. Dog
waste bag dispensers will be located at each trailhead maintained by the Town.
Picnic Tables: The Town may place picnic tables on the Property at the terminus of the Beaver
Creek Point Lookout Trail. They will be situated in a manner that does not negatively impact the
scenic qualities of the Property.
Structures: There are no standing structures currently existing on the Property, and there are no
plans for any above -grade structures. Prior to constructing any structures permitted by the
Conservation Easement, but which are not specifically addressed in this Plan, the Town and
EVLT shall amend this Plan.
Fences: The Property is bounded by game fencing along the Interstate -70 Right -of -way on the
South, barb -wire fence delineating some of the boundaries, and limited split rail fencing near
existing access points and along Beaver Creek Point Road. If deemed necessary by the Town for
management purposes, new fences and gates may be constructed. The Town will insure that the
fences meet standards established by the Colorado Division of Wildlife designed to reduce
wildlife entanglement risk. In all cases the fencing will be split rail design. Fencing will be
installed to help delineate the Beaver Creek Point Parking Area.
Access: Users will access the Property from one of the four identified trailheads. No parking is
allowed on adjacent residential streets including but not limited to: Saddleridge Loop, Beaver
Creek Point (except as may be permitted by the Town), or June Creek Trail. EVLT shall have no
obligation to enforce these requirements.
Restroom Facilities: No current plans for restroom facilities exist. The Town will monitor use
and the condition of the trailhead areas to determine if a restroom facility is needed. The
location of the restroom(s) would be adjacent to the trailhead area(s) within Building
Envelope(s). Prior to the construction of any restroom facilities, the Town and EVLT shall
amend this Plan.
Utility Improvements: There are third party easements affecting the Property. The terms of
those third parry easements shall control. No new utility improvements are contemplated at this
time. Future utility improvements may be required. Prior to the installation of any new utilities,
the Town and EVLT shall amend this Plan.
Management Plan — West Avon Parcel
Jan. 22, 2013 FINAL
Page 5 of 10
Agriculture: The Town has no plans to use the Property for agricultural uses. In the
agricultural use is implemented, stewardship and managements methods that preserve the r
resources will be utilized.
Noxious Weeds: The Property is generally free of noxious weeds given its and nature. The
Town will manage the Property to control noxious weeds to the extent reasonably possible. The
Town trained staff; or third -party licensed commercial applicator will complete any potential
spraying operations. Town Staff will monitor the Property to ensure that weed control efforts'I are
successful and that new populations do not become established. Specific focus will be given to
detecting Colorado "A list" noxious weed species. "A List" species are plants that are newly
introduced to Colorado and represent a serious threat to ecological integrity and naive
biodiversity. For these plants the management goal is total eradication. Under Colorado Law
"B List" species must be controlled.
Wildlife Management: Wildlife habitat protection is a primary goal. Critical wildlife habitat
was identified by the Colorado Division of Wildlife. The Property is within the MA5.41 deer
and elk winter range area. Between December 151h and April 15th the Avon/Singletree trail will
be closed to all uses. The Beaver Creek Lookout and Saddleridge Trails will be open year
around. Dogs will be required to be on leash between December 15th and April 15th. If
compliance with the leash regulation during the winter is not successful, then management
options, such as closing the area completely during this period, will be considered. EVLT shall
have no obligation to enforce the provisions included within this paragraph.
Natural Habitat Management: At this time, the Town has no plans to conduct any natural
habitat management. Prior to implementing any plan to conduct natural habitat management, the
Town and EVLT shall amend this Plan. I
Signage: Signage will include regulatory, educational, and directional signs, mainly in the
trailhead locations, with limited signage at trail intersections. The Town will develop', an
effective trail signage system that is tasteful, unobtrusive to the natural landscape, and consistent
with size limitations stipulated in the Conservation Easement. The goal is to provide a
comprehensive coordinated sign program. Regulatory signs will essentially focus on rules for
using the Property. Directional signs with trail maps may be located on the Property at trail
intersections and key way - finding points. Educational signs may be concentrated at !the
trailhead, with limited signs along the trails at unique vantage points (i.e. Beaver Creek lookout
terminus).
Educational Programming: Educational activities on the Property are encouraged. These
activities may take many forms including guided hikes, school programs, trail maintenance
workshops, and special events such as Earth Day celebrations.
Encroachments: The general public is not permitted to place or store personal items on the
Property. Encroachments involving personal items often include lawn furniture, yard tools Wand
equipment, grass clippings, yard waste, sports equipment, firewood, toys, targets, tents, forts, and
trash. The Town will notify offenders that the activity is not permitted and will outline what is
Management Plan — West Avon Parcel
Jan. 22, 2013 FINAL
Page 6 of 10
expected of them to correct the situation. In the case the offenders are not identified, the Town
will mitigate the encroachment.
Allowable Uses: The Town and EVLT agree that the following uses may occur on the Property:
• Hiking
• Mountain biking
• Equestrian
• Jogging /running
• Dog walking
The following uses may be allowed on the Property so long as they do not create new
unauthorized trails or adversely impact the conservation values of the Property:
• Picnicking
• Photography
• Wildlife viewing/Bird watching
• Snowshoeing
• Cross - country skiing
• Orienteering
• Frisbee, but no construction of Frisbee Golf Course
• Kite -flying
• Other uses not inconsistent with Town regulations for open space or with the
conservation values of the Property
Special Uses: The Town anticipates that certain special uses will be requested by the public,
which are too numerous and wide - ranging to list in this Plan. Each request will be evaluated by
Town Staff to determine if it will have detrimental impacts to the conservation values of the
Property in which case such special event shall not be approved by the Town. Specific
considerations will include:
• Duration of event.
• Specific location within the Property.
• Potential impacts to vegetation and wildlife.
• Potential impacts to adjacent landowners.
• Consistency with vision of open space purpose to provide passive recreational access.
• The extent to which the proposed use interferes with, compromises or diminishes the
ability for others to use and enjoy the Property.
• Will the use result in increased management costs for Town.
• Overall scope and scale of impacts to the Property, adjacent properties, and conservation
values.
The Town agrees to provide EVLT with a copy of any request for a special use on the
Property. EVLT will immediately notify the Town Staff if EVLT believes the proposed event
will be undertaken in a manner than will have a detrimental impact to the conservation values. If
Management Plan — West Avon Parcel
Jan. 22, 2013 FINAL
Page 7 of 10
such notice is given by EVLT, the Town agrees to either deny approval of the event, or to require
conditions to the approval of the special event to ensure that the event is undertaken in a manner
that does not have a detrimental impact to the conservation values.
Property Damage: In the event that property damage occurs, restoration shall occur as set forth
in the Conservation Easement. Disturbances caused by existing third parry easement holders (as
that term is defined in the Conservation Easement) shall be governed by the easements or
statutory or common law rights and obligations.
Management Plan — West Avon Parcel
Jan. 22, 2013 FINAL
Page 8 of 10
RULES AND REGULATIONS
Hours Open: Public access to the Property shall be permitted during the period that is one hour
before sunrise to one hour after sunset each day. All portions of the Property may be closed
seasonally or as determined by the Town for maintenance or to address wildlife or other matters
affecting the Property. In the event of such closure, the same shall be posted on the Property and
no additional notice to EVLT shall be required.
Town has established rules and regulations for all open space properties that will be owned
and managed by the Town. Town reserves the right to amend and enact such rules and
regulations as deemed appropriate by the Town in the exercise of its police powers for the
preservation of the health, safety and general welfare of the Avon community. EVLT shall have
no obligation to enforce any rules and regulations adopted by the Town, including those listed
below.
The following rules apply:
• No fires or fireworks
• No hunting on the Property and no hunting access to the Property
• No discharge of weapons
• No motorized recreation
• No off -trail use that would lead to creation of new trails
• No littering
• No picking of plants
• No collection of artifacts
• No commercial activity
• No removal or collection of plants, animals, fungi, or rocks
• No hang - gliding
• No loud music
• No camping
• No overnight parking in trailhead parking areas
Additional rules and regulations may be identified and developed after the Property is
formally made available to the public.
Management Plan — West Avon Parcel
Jan. 22, 2013 FINAL
Page 9 of 10
CONSERVATION EASEMENT MONITORING
EVLT will hold a Conservation Easement on the Property. This will necessitate annual
monitoring. EVLT Staff shall notify Town Staff in advance of any annual monitoring effort so
that Town Staff may accompany EVLT Staff during the monitoring. Town and EVLT will
maintain a file of annual easement monitoring reports and work cooperatively to address any
concerns associated with use and management of the Property.
APPROVED AND ADOPTED THIS day of , 2013.
Town of Avon, Colorado
By:
Management Plan — West Avon Parcel
Jan. 22, 2013 FINAL
Page 10 of 10
Eagle Valley Land Trust
By:
EXHIBIT G:
INTERGOVERNMENTAL AGREEMENT BETWEEN
THE COUNTY OF EAGLE AND THE TOWN OF AVON
INTERGOVERNMENTAL AGREEMENT
BETWEEN
THE COUNTY OF EAGLE AND
THE TOWN OF AVON
This Intergovernmental Agreement ( "Agreement ") is made this day of
2013, by and between the County of Eagle, State of Colorado, a body
corporate and politic ( "County ") and the Town of Avon, a Colorado home rule municipal
corporation ( "Town "), (individually referred to as "Party" and collectively as "Parties ").
WITNESSETH
WHEREAS, the White River National Forest - Eagle/Holy Cross Ranger District initiated a
multi -party land exchange involving Eagle County, the Colorado State Board of Land
Commissioners, the Upper Eagle Regional Water Authority, and the United States Forest Service
( "Land Exchange ");
WHEREAS, the Town has acquired two parcels of land from the United States government
as a result of the Land Exchange, dated , by and among the State of Colorado Siate
Board of Land Commissioners, the Upper Eagle River Water Authority, Eagle County, and the
United States of America Forest Service, which parcels are described as: the West Avon Parcel
containing approximately 478.09 acres and located within the Town of Avon; and, the Village
Parcel, containing approximately 85.99 acres and located within in Eagle County;
WHEREAS, the Village Parcel is bounded on three sides by the Village (at Avon) PUD
project area and the Village Parcel is situated such that road and trail access across the Village
Parcel may be the best alignment for connection to the lower and eastern most portions of the
Village (at Avon) PUD project area;
WHEREAS, the Town adopted Resolution No. 11 -12 A RESOLUTION REPEALING
RESOLUTION 11 -09 AND APPROVING A NEW RESOLUTION BY THE AVON TOWN
COUNCIL SUPPORTING A MULTI -PARTY LAND EXCHANGE LOCATED IN THE
WHITE RIVER FOREST IN EAGLE COUNTY AND RECOMMENDING EXCEPTIONS TO
THE CONSERVATION EASEMENTS ON THE WEST AVON PARCEL AND THE
VILLAGE PARCEL which stated the policy to reserve from any conservation easement
recreational trails, approximately 6 acres of land for affordable housing and community facilities
on the Village Parcel, and a potential future easement or easements for a road and trail
connecting Planning Area RMF -1 to Planning Area M (as defined in the 1998 Village (at Avon)
PUD map) on the Village Parcel;
WHEREAS, the Town is not able to determine the specific alignment and location of such
uses to be reserved from a conservation easement at this time but Town desires to make a
commitment to the County that a conservation easement will be granted for the Village Parcel in
the future and further desires to cooperate effectively with the County to promote the efficient
Eagle County —Town of Avon 2013 IGA Village Parcel Conservation Easement
Page 1 of 4
Jan. 22, 2013 FINAL
achievement of important community goals for Eagle County residents, including but not limited
to residents of the Town of Avon; and,
1.
2.
3.
4.
WHEREAS, this Intergovernmental Agreement is authorized pursuant to §29 -1 -201 and
-11 -101, Colorado Revised Statutes, as amended; Article XIV, Section 18, of the Colorado
Istitution; and Section 16.2 of the Avon Home Rule Charter.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
-s contained herein, the Parties agree as follows:
Future Conservation Easement. The Town agrees that Town will grant to Eagle Valley
Land Trust, or other appropriate organization mutually acceptable to Town and County, a
conservation easement ( "Future Conservation Easement ") on the portion of the Village
Parcel remaining after the determination of the location and alignment of roadways and trails
and after determining the boundaries of a reserved area for affordable housing and
community facilities. The Future Conservation Easement shall restrict and protect the
remaining portion of the Village Parcel as open space in its natural state, shall allow passive
recreation activities, and shall generally include such other terms as are included in the
conservation easement on the West Avon Parcel or shall include such terms as Town and
County mutually agree. The Town agrees that the area for affordable housing and
community facilities shall be no greater than 6.5 acres without approval by the County and
that the location shall be generally on the northwest corner of the Village Parcel as depicted
in Resolution No. 11 -12 of the Town of Avon, attached hereto as Exhibit "A" and
incorporated herein.
Cooperation on Affordable Housing. Town agrees to actively explore cooperative or
partnership efforts with County to promote cost effective, energy efficient, environmentally
and architecturally appropriate, affordable housing projects on the portion of the Village
Parcel reserved for such purpose.
Future Maintenance Agreement. Simultaneously with the conveyance of the Future
Conservation Easement, Town and County agree to enter into a maintenance agreement to set
forth the Town's obligations with respect to the use and maintenance of the Village Parcel
(the "Future Maintenance Agreement "). The Future Maintenance Agreement will provide
for inspections of trail conditions, fencing, if any, status and condition of signage and other
improvements, and a review of maintenance levels. The Town and County shall
cooperatively and mutually determine what additional maintenance, if any, may be necessary
or desired, for the Village Parcel. The Town and County may update or revise the Future
Maintenance Agreement as may be mutually determined.
Costs. Town shall be responsible for and shall bear all costs and liabilities of any kind
related to the ownership, operation, upkeep, and maintenance of the Village Parcel, and any
improvements or trails thereon: All maintenance obligations of the Town under this
Eagle County —Town of Avon 2013 IGA Village Parcel Conservation Easement
Page 2 of 4
Jan. 22, 2013 FINAL
Agreement are subject to funds being budgeted and appropriated. Eagle County shall not be
responsible for any such costs or liabilities associated with the Village Parcel.
5. Term. This Agreement is effective from this day forward, until the earlier of (a) the date
which the Town grants a conservation easement on the Village Parcel in accordance with the
terms in this Agreement or (b) December 31, 2037.
6. Notices. All notices, requests, consents, approvals, written instructions, reports or other
communication by the Town and the County, under this Agreement, shall be in writing and
shall be deemed to have given or served, if delivered or if mailed by certified mail, postage
prepaid or hand delivered to the Parties as follows:
Town of Avon:
Town of Avon
One Lake Street
PO Box 975
Avon, CO 81620
Attn: Town Manager
County of Eagle:
Eagle County Attorney
P.O. Box 850
Eagle, CO 81631
Either Party may change the address to which notices, requests, consents, approvals,
written instructions, reports or other communications are to be given by a notice of change of
address given in the manner set forth in this section.
7. Third Party Beneficiary. This Agreement does not and shall not be deemed to confer upon
or grant to any third parry any right to claim damages or to bring any lawsuit, action or other
proceedings against either the Town or the County because of any breach hereof or because
of any terms, covenants, agreements or conditions contained herein.
8. Amendments. No modification or waiver of this Agreement or of any covenant, condition,
or provision herein contained shall be valid unless in writing and duly executed by the Party
to be charged therewith.
9. Entire Agreement. This written Agreement embodies the whole agreement between the
Parties hereto and there are no inducements, promises, terms, conditions, or obligations made
or entered into either by the County or the Town other than those contained herein.
10. Assignment. This Agreement shall be binding upon the respective Parties hereto, their
successors or assigns and may not be assigned by anyone without the prior written consent of
the other respective Party hereto. Such approval shall not be unreasonably withheld, but any
unapproved assignment is void.
Eagle County —Town of Avon 2013 IGA Village Parcel Conservation Easement
Page 3 of 4
Jan. 22, 2013 FINAL
11. Severability. All agreements and covenants herein are severable, and in the event that any
of them shall be held invalid by a court of competent jurisdiction, this Agreement shall be
interpreted as if such invalid agreement or covenant were not contained herein.
12. Authorily. The Town has represented to the County and, likewise, the County has
represented to the Town, that each possesses the legal ability to enter into this Agreement. In
the event that a court of competent jurisdiction determines that either of the Parties hereto did
not possess the legal ability to enter into this Agreement, this Agreement shall be considered
null and void as of the date of such Court determination.
13. Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of Colorado. The Parties agree that venue for any dispute regarding this
Agreement shall be proper in Eagle County, Colorado.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement the day and
year first above written.
COUNTY OF EAGLE, STATE OF
COLORADO, by and through its
ATTEST: BOARD OF COUNTY COMMISSIONERS
Clerk to the Board of
County Commissioners
ATTEST:
IC
Patty McKenny, Town Clerk
L50
Jon Stavney, Chairman
TOWN OF AVON
Rich Carroll, Mayor
Eagle County —Town of Avon 2013 IGA Village Parcel Conservation Easement
Page 4 of 4
Jan. 22, 2013 FINAL
EXHIBIT H:
INTERGOVERNMENTAL AGREEMENT BETWEEN THE
COUNTY OF EAGLE, THE TOWN OF AVON, AND BERRY
CREEK METROPOLITAN DISTRICT REGARDING
MAINTENANCE OF WEST AVON PROPERTY AND RELATED
TRAILS
INTERGOVERNMENTAL AGREEMENT
BETWEEN THE COUNTY OF EAGLE,
THE TOWN OF AVON,
AND
BERRY CREEK METROPOLITAN DISTRICT
REGARDING MAINTENANCE OF
WEST AVON PROPERTY AND RELATED TRAILS
This Intergovernmental Agreement dated this day of ' 2013
( "Agreement ") is entered into by and between the County of Eagle, Colorado, a body corporate
and politic, by and through its Board of County Commissioners ( "County "), The Town of Avon,
a home rule municipality, by and through its Town Council ( "Town "), and Berry Creek
Metropolitan District, a quasi - municipal corporation by and through its Board of Directors
( "District ") (individually referred to as "Party" and collectively as "Parties ").
RECITALS
WHEREAS, as part of a multi -parry land exchange between the State of Colorado, acting
through its State Board of Land Commissioners, the Upper Eagle Regional Water Authority,
acting through its Board of Directors, the County of Eagle, acting through its Board of
Commissioners, and the United States of America ( "Land Exchange "), the Town has accepted
title to approximately 478.09 acres of land in the Town of Avon, Eagle County, Colorado more
particularly described as Township 4 South, Range 82 West, Township 5 South, Range 82 West,
County of Eagle, State of Colorado ("West Avon Property ");
WHEREAS, the West Avon Property is or will be permanently conserved as open space
through a Deed of Conservation Easement (defined in Paragraph 1 below) between the Town and
Eagle Valley Land Trust ( "EVLT ");
WHEREAS, as part of the community effort associated with the Land Exchange and the
conveyance of the West Avon Property to the Town, the Parties have agreed to enter into this
Agreement to set forth the Parties' respective obligations with respect to the use and maintenance
of the West Avon Property; and
WHEREAS, this Intergovernmental Agreement is authorized pursuant to §29 -1 -201 and
§30 -11 -101, Colorado Revised Statutes, as amended; Article XIV, Section 18, of the Colorado
Constitution; and the Avon Home Rule Charter.
Eagle County, Town of Avon, Berry Creek Metro District IGA Maintenance West Avon Parcel
Page 1 of 6
Jan. 22, 2013 FINAL
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, including the promises set forth
herein, the Parties agree as follows:
1. Maintenance. The Parties agree that maintenance for the West Avon Property shall be
performed consistent with the terms of the Deed of Conservation Easement dated , 2013
( "Conservation Easement "), and the Management Plan for the West Avon Property dated
January 22, 2013 ( "Management Plan "):
a. Town shall perform or cause to be performed:
i. Weed control and spraying, as needed;
ii. Trail maintenance, as needed;
iii. Trash pickup from a trash container installed by Town, to be located at Beaver Creek
Point trailhead;
iv. Stock dog bags, as needed;
v. Inspection and monitoring of parking area and trailhead;
vi. Snow removal in parking area, as needed; and
vii. Inspections of the West Avon Property which may include an inspection of trail
conditions, fencing, if any, status and condition of signage and other improvements,
and a review of maintenance levels. Town will provide District and County with
advance notice of the date of the inspections so that District and County project
managers may also attend.
b. Following the inspections of the West Avon Property, the Parties shall cooperatively and
mutually determine what additional maintenance, if any, may be necessary or desired, for
the Property.
2. Costs. Town shall be responsible for and shall bear all costs and liabilities of any kind related
to the ownership, operation, upkeep, and maintenance of the West Avon Property and any
improvements or trails thereon. All maintenance obligations of the Town under this Agreement
are subject to funds being budgeted and appropriated. Eagle County shall not be responsible for
any such costs or liabilities associated with the West Avon Property.
3. Signage for the West Avon Property. The Parties shall mutually agree on the location of
and verbiage for signage on the West Avon Property consistent with the terms of the
Conservation Easement and Management Plan for the West Avon Property.
Eagle County, Town of Avon, Berry Creek Metro District IGA Maintenance West Avon Parcel
Page 2 of 6
Jan. 22, 2013 FINAL
4. Trailhead on West Avon Property. In the event that Town identifies any nuisance or
improper use of the parking area and/or trailhead during its inspections, the Town's project
manager (see paragraph 7 below) shall notify District's and County's project manager (see
paragraph 7 below) in an effort to develop a cooperative solution which may include, by way of
example only, installation of additional signage, additional monitoring or enforcement of rules.
5. 1 Term. The initial term of this Agreement shall be for a one -year term commencing upon
execution by the Parties. This Agreement shall automatically renew for additional one (1) year
terms commencing January 1 of each consecutive year unless earlier terminated as set forth
6. TABOR. Town, County and District are governmental entities and all obligations beyond the
current fiscal year are subject to funds being budgeted and appropriated. Notwithstanding
anything to the contrary contained in this Agreement, no payment shall be made for any
maintenance services provided after December 31 of any year without prior approval of a budget
adopted in accordance with the provisions of Article 25 of Title 30 of the Colorado Revised
Statutes and Local Government Budget Law (C.R.S. §29 -1 -101 et. seq.).
7. (Project Managers. The Parties acknowledge that on -going coordination and communication
will be required. As a result, each Party shall have designated a project manager to coordinate
performance and communication under this Agreement. The Town's project manager shall be
the Town Manager, or his or her designee, the County's project manager shall be the Eagle
County Open Space Director, and the District's project manager shall be its Executive Director.
Any and all correspondence between the Parties regarding this Agreement shall be between and
among the project managers. Any Party may designate a different project manager by notice in
writing to the other Parties.
8. ',,Disputes. In the event of a dispute or failure to perform as set forth herein, then the project
managers identified in paragraph 7 shall first work together to find a solution or resolve the
dispute. If the dispute or failure to perform remains on -going for more than thirty (30) days, then
any Party may give a formal notice of default to the defaulting Party. The defaulting Party will
tal Ie steps to correct the default or breach within thirty (30) days or such longer time as it may
reasonably take to correct the breach or default after notice of default is received. In the event
the'i default is not timely corrected as set forth herein, then the non - defaulting Party or Parties
may pursue any legal remedies available to it and terminate this Agreement.
9. Termination. Any Party may terminate this Agreement without cause upon one hundred
twenty (120) days advance notice to the other Parties.
10! Notice. Any notice and all written communications required under this Agreement shall be
given in writing by personal delivery, fax or U.S. mail to the appropriate Party at the following
Town: Town of Avon
One Lake Street
Eagle County, Town of Avon, Berry Creek Metro District IGA Maintenance West Avon Parcel
Page 3 of 6
Jan. 22, 2013 FINAL
P.O. Box 975
Avon, CO 81620
Attn: Town Manager
Telephone: (970) 748 -4000
Facsimile: (970) 949 -9139
With a copy to: Town of Avon
One Lake Street
P.O. Box 975
Avon, CO 81620
Attn: Town Attorney
Telephone: (970) 748 -4000
Facsimile: (970) 949 -9139
District: Berry Creek Metropolitan District
c/o Robertson & Marchetti, P.C.
28 Second Street, Suite 213
Edwards, CO 81631
Telephone: (970) 926 -6060
Facsimile: (970) 926 -6040
With a copy to: James P. Collins, Esq.
Collins Cockrel & Cole
390 Union Boulevard, Suite 400
Denver, CO 80228 -1556
Telephone: (303) 986 -1551
Facsimile: (303) 986 -1755
Copp : Director of Open Space
Eagle County
Post Office Box 850
500 Broadway
Eagle, CO 81631
Telephone: (970) 328 -8698
Facsimile: (970) 328 -7185
With a copy to: Eagle County Attorney's Office
Post Office Box 850
500 Broadway
Eagle, CO 81631
Telephone: (970) 328 -8685
Facsimile: (970) 328 -8699
Notices shall be deemed given on the date of delivery if delivered in person or by a service
like Federal Express or United Parcel Service, or three (3) days after the date of deposit, first
Eagle County, Town of Avon, Berry Creek Metro District IGA Maintenance West Avon Parcel
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Jan. 22, 2013 FINAL
class postage prepaid, in an official depository of the U.S. Postal Service. When sent via
facsimile so long as the sending Parry can provide a facsimile machine or other confirmation
showing the date, time and receiving facsimile number for the transmission.
11. Assignment. The rights and obligations of the Parties to this Agreement may be assigned
with consent of the Parties, which shall not be unreasonably withheld. Any assignment made
without consent of the Parties is void.
12. Insurance. At all times during the term of the Agreement all Parties shall maintain
insurance consistent with the limits established by the Colorado Governmental Immunity Act.
13. Entire Understanding. This Agreement embodies the entire understanding and agreement
of the Parties, and there are no further or other agreements or understandings, written or oral, in
effect between them relating to the subject matter hereof.
14. Amendments. This Agreement may not be amended except by a written document
executed by the Parties hereto.
15. Independent Contractor. It is expressly acknowledged and understood by the Parties
hereto that nothing contained in this Agreement shall result in, or be construed as establishing an
employment relationship between the Parties.
16. Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of Colorado. The Parties agree that venue in any action to enforce or
interpret this Agreement shall be in the Eagle County District Court.
17. No Third Party Rights. This Agreement does not and shall not be deemed to confer upon
or grant to any third parry any right enforceable at law or equity arising out of any term,
covenant or condition herein or a breach thereof.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties have hereunto set their hands, by their duly authorized
representatives.
ATTEST:
I=
Patty McKenny, Town Clerk
ATTEST:
Clerk to the Board of
County Commissioners
TOWN OF AVON
By and through its Town Council
C
Rich Carroll, Mayor
EAGLE COUNTY, COLORADO
By and through its Board of County Commissioners
I=
Jon Stavney, Chairman
BERRY CREEK METROPOLITAN DISTRICT
.0
Its:
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