OPEN SPACE AGREEMENT FOR Lokal Two Bridges LLC

Transcription

1 OPEN SPACE AGREEMENT FOR Lokal Two Bridges LLC

2 OPEN SPACE AGREEMENT Two Bridges A Lokal Homes Community In Douglas County, Colorado Approved under the HIGH PRAIRIE INTERNATIONAL POLO CLUB RURAL SITE PLAN This Open Space Agreement ("Agreement'') is made as of this day of 2017 by and among Lokal Two Bridges, LLC., a Colorado Limited Liability Company ( Lokal ), the Two Bridges Metropolitan District (the District ), and the BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF DOUGLAS, STATE OF COLORADO ("County"), whose address is 100 Third Street, Castle Rock, Colorado 80104, Attention: Community Development Department, The Developer, Lokal Two Bridges, LLC. The District may be referred to herein individually from time to time as an "Owner," and the Parties collectively as the Owners." This agreement replaces and supersedes that HPIPC Open Space Agreement dated March 21, RECITALS A. Lokal and the County have worked together to implement, construct and finish those improvements contemplated in the Rural Site Plan (the "RSP"), referenced above as the International High Prairie Polo Club in accordance with Section 300, et seq., of the Douglas County Zoning Resolution (the "Resolution"), and the County has approved an exemption for the RSP in accordance with Section of the Colorado Common Interest Ownership Act (the "Act"), as set forth in the Colorado Revised Statutes. The RSP is both a "map" and a "plat" under the Act, and contemplates the development of the real property known as the High Prairie International Polo Club Rural Site Plan, as legally described thereon (the "Property"). This Agreement was recorded simultaneously with the RSP in the real property records of the Clerk and Recorder for the County. B. A portion of the Property will be developed as sixty (60) single family residential parcels known as Two Bridges by Lokal Homes. Two Bridges is a covenant controlled Community, and a portion of the Property will remain as open space. Both the District and the County will own and maintain certain tracts of this open space as further defined herein. C. Specifically, as a condition to the County's approval of the RSP, at least sixtyseven percent (67%) of the real estate comprising the Property must be used as open space in accordance with this Agreement and Section 305A of the Resolution. D. Additionally, a portion of the Property (Parcels G and H) along with the Right of Way ( ROW ) for all paved roads will be dedicated to Douglas County under a separate document to be owned and maintained by the County. 1

3 E. The County has determined the following Tracts designated on the RSP meet the applicable criteria for real property devoted to open space use as prescribed in Section 305A.01 of the Resolution: Tracts A, B, E, F, G, H, J, K, L, M, N, Q and R (collectively, the "Open Space Tracts"). For purposes of this Agreement, ''Tract'' means a tract of land shown on the RSP which is denoted by a letter and which is to be utilized for purposes other than for constructing a single-family residence thereon. F. The District is the owner of Open Space Tracts A, B, E, F, J, K, L, M, N, Q, and R collectively known as District Tracts. G. The County is the owner of Open Space Tracts G and H (collectively known as County Tracts as well as the Road network and Right of Way as defined in the RSP and collectively known as County Roads ). The District will be provided an easement by the County for a portion of Tract H for the maintenance of the monument and accompanying landscaping (the Tract H Easement ). H. The District Tracts and County Tracts possess natural, scenic and open space values of significant importance to the owners and the County (collectively, the "Conservation Values"). The following County measures support the conservation of the Open Space Tracts as permanent open space in accordance with this Agreement: (1) The Douglas County Master Plan; (2) The Douglas County Parks, Trails and Open Space Master Plan; and Douglas County Resolution #R , which encourages the preservation of open space (3) In particular, the Open Space Tracts have the following Conservation Values: (a) (b) (c) Scenic. The County Tracts and District Tracts are highly visible from Bayou Gulch Road. Scenic vistas shall be given due consideration in the development and use of these Tracts. Wildlife. The County Tracts and District Tracts are home to a wide variety of wildlife, including deer, antelope and coyotes. The Open Space Tracts shall be managed to promote the continued cohabitation by wildlife, including the use of wildlife friendly fencing. Pasture. The County Tracts and District Tracts offer important opportunities for the pasturing of wildlife, horses and other domestic animals. Both Tracts shall be managed using responsible rangeland management methodologies and procedures consistent with those endorsed by the Douglas County Natural Resources Conservation Service, including procedures for pasture rotation, and de-vegetation and reseeding/re-vegetation programs as well as farming to include crops and hay as a way to help manage the Property in a natural and conservation minded manner. 2

4 (d) Farming. The Tracts shall be managed with responsible rangeland management methodologies and procedures consistent with those endorsed by the Douglas County Natural Resources Conservation Service, including procedures for pasture rotation, and de-vegetation and reseeding/revegetation programs as well as farming to include crops and hay as a way to help manage the Property in a natural and conservation minded manner. I. The Owners intend that the Conservation Values of the County Tracts and District Tracts be preserved and maintained by the continuation of land use patterns similar to certain of those existing on the date of this Agreement. J. Through a Deed by and between Lokal and the County, Lokal will convey to the County the Tracts G and H as well as the Roads and their Right of Way together with the right to preserve, maintain and protect the Conservation Values and the tracts in perpetuity. The District will be provided the Tract H Easement. K. This Agreement describes and documents the uses and restrictions applicable to each of the Open Space Tracts. NOW THEREFORE, in consideration of the Recitals, which are incorporated by reference herein and shall be deemed to be a part of the substantive terms of this Agreement, and the mutual covenants and agreements hereinafter set forth, the parties hereto do hereby covenant and agree as follows: 1. Prohibited Uses and Structures. Any activity on or use of the Open Space Tracts inconsistent with the purposes of this Agreement is prohibited. Without limiting the generality of the foregoing, the following activities and uses are expressly prohibited: (a) Construction of Buildings and Other Structures. Except as otherwise permitted in paragraph 2 hereof, the construction of any building or other structure or improvement is prohibited in Tracts A, B, K, L, M and Q. (b) Industrial Use. No industrial uses shall be allowed on any District Tract. Industrial uses are those uses inconsistent with the spirit of the RSP, the Community and the environment of Two Bridges, as determined by the Board of Directors of the District. 2. Permitted Uses and Structures. The Owners reserve for themselves, and their respective successors and assigns, all rights accruing from their ownership of their respective Open Space Tracts, including the right to engage in or invite others to engage in all uses of the Open Space Tracts that are consistent with this Agreement and not expressly prohibited herein. Without limiting the generality of the foregoing, the following rights and consistent uses are expressly permitted: (a) Permitted Structures. Structures created to allow the uses set forth in paragraphs 2(b) and 2(c) below shall be permitted under this Agreement, subject to the issuance of building permits and other County procedures applicable to new construction in the ordinary course (the "Permitted Structures"). The Owner of an Open Space Tract containing a Permitted Structure may construct, maintain, repair, replace, 3

5 expand or contract such structure, subject to the normal County procedures for such activities, if applicable. (b) Fences. An Owner may repair or replace existing fences, and new fences may be built on its Open Space Tracts for purposes of reasonable and customary management of livestock, farming activities and wildlife. All fences shall be "wildlife friendly", constructed in such a manner as to permit the migration of wildlife across the property and shall be consistent with standards approved by the State of Colorado Department of Natural Resources, Division of Wildlife. (c) Permitted Uses within District Tracts. (i) (ii) (iii) (iv) (v) (vi) (viii) Tract A walking/biking trails, equestrian trails; construction and maintenance of detention and water feature/quality ponds, storm water drainage facilities and other drainage facilities; and construction and maintenance of water wells. Tract B walking/biking trails, equestrian trails; construction and maintenance of detention and water feature/quality ponds, storm water drainage facilities and other drainage facilities; entry feature landscaping and associated appurtenances; and construction and maintenance of water wells. Tract E - agriculture, walking/biking trails, equestrian trails; construction and maintenance of detention and water feature/quality ponds, storm water drainage facilities and other drainage facilities; landscaping and associated appurtenances; and construction and maintenance of water wells. Tract F - agriculture, walking/biking trails, equestrian trails; construction and maintenance of detention and water feature/quality ponds, storm water drainage facilities and other drainage facilities; landscaping and associated appurtenances; and construction and maintenance of water wells. Tract J walking/biking trails, equestrian trails, construction and maintenance of water wells and fire cisterns; construction and maintenance of storm water drainage facilities and other drainage facilities, and construction of minor recreational structures such as entry features and gazebos. Tract K- walking/biking trails, equestrian trails; landscaping and associated appurtenances; and construction and maintenance of water wells Tract L walking/biking trails, equestrian trails; construction and maintenance of water wells and fire cisterns; construction and maintenance of storm water drainage facilities and other drainage facilities; and construction of minor recreational structures such as entry features and gazebos 4

6 (ix) (x) (xi) (xii) Tract M walking/biking trails, equestrian trails; construction and maintenance of water wells and fire cisterns; construction and maintenance of storm water drainage facilities and other drainage facilities; Tract N walking/biking trails, equestrian trails; construction and maintenance of water wells and fire cisterns; construction and maintenance of storm water drainage facilities and other drainage facilities; Tract Q walking/biking trails, equestrian trails; construction and maintenance of water wells and fire cisterns; construction and maintenance of storm water drainage facilities and other drainage facilities; Tract R - agriculture, walking trails, equestrian trails; construction and maintenance of detention and water feature/quality ponds, storm water drainage facilities and other drainage facilities; landscaping and associated appurtenances; and construction and maintenance of water wells in addition to residential uses per Section 4 Douglas County Zoning Code. (d) Trails. All trails within the District Tracts and County Tracts may be used by the residents of Two Bridges (and their respective guests and invitees) for equestrian purposes and pedestrian/bicycle purposes; provided, however, the District may restrict the use of the trails from time to time as reasonably prudent for the management of this resource and for the protection and safety of the residents and users. Motorized vehicles, including cars, trucks, ATV's, off-road vehicles, motorcycles, dirt bikes and scooters, shall not be permitted on the trails at anytime (except for grooming and maintenance equipment, and except for vehicles necessary to conduct this maintenance or as may from time to time facilitate agricultural farm implements. Trails are a Use by Right on ALL Open space tracts). With respect to the County Tracts G and H, the trails will be open to the Public in addition to the residents of Two Bridges. 3. Power of Enforcement. (a) District Tracts - To ensure continued compliance with the intent of this Agreement, the County shall have the following rights with respect to the District Tracts: (i) The right to enforce the terms and conditions of this Agreement (ii) (iii) The right to preserve and protect the Conservation Values in perpetuity. The right to enter upon the District Tracts from time to time in order to monitor compliance with and otherwise enforce the terms of this Agreement; provided that the County shall not unreasonably interfere with the Districts and the Districts residences use and quiet enjoyment of the Tracts. 5

7 (iv) (v) (vi) The right to prevent any activity on, or use of, any District Tract that is inconsistent with the purpose of this Agreement and to require the restoration of such areas or features of one or more of the District Tracts that may be damaged by any inconsistent activity or use. The primary responsibility for enforcement of this Agreement shall lie with The District provided, however, designation of such primary responsibility shall in no way limit the enforcement rights granted herein to the County. The Owners shall be responsible for the following costs and expenses: (1) the District shall be responsible for all costs and expenses in any way pertaining to the maintenance and restoration of the District Tracts. (b) Enforcement Actions. The provisions of Section 4 below shall govern all enforcement actions hereunder. 4. Enforcement Procedures. (a) Restoration Plan. If the County finds what it believes is a violation of this Agreement, the County shall immediately notify the District of the affected District Tract(s) in writing of the nature of the alleged violation, with a copy of the notice to be sent to Lokal to the extent that Lokal has not built out the lots. Upon receipt of this written notice, the Owner(s) shall either: (a) restore the Tract(s) to its condition prior to the violation in accordance with a written restoration plan; or (b) provide a written explanation to the County of the reason why the alleged violation should be permitted. The restoration plan shall be submitted to the County within thirty (30) days after the date on which the notice of violation is given or within a longer time period if so specified by the County in the notice of violation. The restoration plan shall be approved or disapproved by the County in writing within ten (10) days after its submittal. If the County fails to respond in writing within ten (10) days after the Owner(s)' submittal to the County of a restoration plan, the restoration plan shall be deemed approved. The Owner(s) shall begin restoring the Open Space Tract(s) in accordance with the restoration plan within ten (10) days after It is approved or deemed approved by the County and diligently pursue such cure to completion in compliance with the terms of the approved restoration plan. If the condition described in clause (b) above occurs or if the Owner(s) continue the violation, both parties agree to meet as soon as possible to resolve the 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. (b) Relief in the Event of Violation. If an Owner fails to cure a violation determined by the County in accordance with a required restoration plan, the Owner(s) (or the County, as applicable) may bring an action at law or in equity in a court of competent jurisdiction to enforce the terms of this Agreement, to enjoin the violation by temporary or permanent injunction, and to require the restoration of the affected Open Space Tract to the condition that existed prior to any such injury. 6

8 (i) (ii) In the event of an emergency, such as a damaged drainage facility, the County shall have the right to immediately enter upon the applicable District Tract and effect temporary emergency repairs, and to immediately seek an injunction to prevent further damage. The County and the Owners shall under this agreement be able to at their expense and on their respective parcels hire, retain or implement practices to mitigate the impact of noxious weeds, prairie dogs or other such condition as may be encountered on the tracts from time to time for the protection and balance of nature as well as the enjoyment of the residents and public. 5. Water Development. The Owners as well as other individuals own the bulk of the water rights appurtenant to the Open Space Tracts. Certain water rights under Open Space Tract H are owned by Polar, LLC, a Colorado limited liability company pursuant to a transfer/sale by a prior owner. The Owners of record have the right to develop the water and construct water wells, pipelines, and facilities necessary for the development of the water rights. The Owners of those rights shall adhere to the following guidelines for the development of its water rights, the Owner(s) agree to use commercially reasonable efforts to cause Polar, LLC or other such owner as may have water rights to adhere as closely as possible to the following guidelines: (1) Water storage facilities and water tanks, electrical transmission and distribution lines, and water pipelines shall be placed underground; (2) Wellheads, pumping equipment, transfer facilities, controls and control panels, pipeline breathers, electrical power transformers and associated power panels, shall either be placed underground (which may include a raised berm area that permits drainage by gravity flow from any underground vault), or screened or concealed from view by the use of existing topography, existing native vegetation, newly planted native vegetation, and use of natural tone coloring; (3) except as reasonably increased due to technological changes, wellheads shall not exceed three feet in height above grade level, and electrical transformers, and associated power panels shall not exceed six feet above grade level; (4) drilling equipment may be located above ground without concealment or screening, provided that such equipment shall be promptly removed after drilling is completed, which ordinarily would be not more than sixty (60) days after drilling is commenced, and such equipment shall not become permanent; (5) travel for the purpose of water development shall be restricted to existing roads to the extent such roads provide direct access to the water facilities; (6) new roads shall be unpaved and should avoid ridge tops and other highly visible areas, unless the economic cost differential between the proposed location and an alternative which minimizes the effects on the Conservation Values described in this Agreement outweighs the potential degradation of the Conservation Values associated with the proposed location; (7) new facilities, including new roads, pipelines and utilities (but excluding storage ponds, detention and retention facilities), shall not be located in riparian and wetland areas, except such roads, pipelines and utilities may cross wetlands or riparian areas at approximately ninety degree angles; eight (8) areas of surface disturbance, including temporary roads, such as those associated with drilling, shall be mitigated by promptly restoring soils to the original contours and replanting and re-establishing native vegetation; (9) any facilities or equipment located above grade shall promptly be removed or cut off to grade once such facilities or equipment are permanently taken out of service and no longer needed. 7

9 6. Acts Beyond the Control of an Owner; No Public Right of Action. Nothing contained in this Agreement shall be construed to entitle the County (or another party hereto with enforcement rights under Section 3) to bring any action against an Owner for any injury to or change in an Open Space Tract resulting from causes beyond such Owner's control, including, without limitation, fire, flood, storm, and earth movement, or from any prudent action taken by such Owner under emergency conditions to prevent, abate, or mitigate significant injury to an Open Space Tract resulting from such causes. This Agreement may only be enforced by the Owner(s) and the County. No member of the public may maintain either a direct action or a derivative action to enforce the terms of this Agreement. No member of the public may bring a suit for damages against any party to this Agreement based on any alleged violations of this Agreement. 7. Costs and Liabilities. (a) District Maintenance Costs. The District shall retain all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the District Tracts and the Tract H Easement including the maintenance of adequate comprehensive general liability insurance. The District shall remain solely responsible for obtaining any applicable governmental permits and approvals for any construction or any other activity or use permitted by this Agreement on an District Tract and all such construction or other activity or use shall be undertaken in accordance with all applicable federal, state and local laws, regulations and requirements. The District shall keep the District Tracts free of any liens arising out of any work performed for, materials furnished to, or obligations incurred by it. (b) County Maintenance Costs. The County shall retain all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the County Tracts G and H (with the exception of the Tract H Easement), the operation, upkeep, maintenance, and insurance obligations of which shall be the responsibility of the County, including the maintenance of adequate comprehensive general liability insurance. Likewise, the County shall remain solely responsible for obtaining any applicable governmental permits and approvals for any construction or any other activity or use permitted by this Agreement. The County and the Owner shall work in harmony in the planning and implementation of trail and open area plans. (c) Taxes. The Owners shall pay before delinquency all taxes, assessments, fees, and charges of whatever description levied on or assessed against their respective Open Space Tracts by competent legal authority (collectively, "Taxes"), including any Taxes imposed upon, or incurred as a result of, this Agreement. 9. Notices. All notices provided for hereunder shall be deemed given and received when (a) personally delivered or sent by or facsimile or overnight courier during business hours on a business day, or (b) three (3) days after the same is deposited in the United States mail, postage prepaid, registered or certified mail, return receipt requested, addressed to the applicable party at the address indicated below for such party, or as to each party, at such other address as shall be designated by such party in a written notice to the other party. 8

10 If to Developer, Owner Lokal Homes or the Two Bridges Metropolitan District: c/o Lokal Two Bridges, LLC 8310 S. Valley Highway Suite 115 Englewood, CO Attn: Jarrett Coleman If to the District with a copy to: Two Bridges Metropolitan District c/o AJ Beckman, District Manager Special District Management Services, Inc. 141 Union Blvd., Suite 150 Lakewood, CO Phone: Fax: abeckman@sdmsi.com MaryAnn M. McGeady Shareholder McGeady Becher P.C. 450 E. 17th Avenue, Suite 400 Denver, CO Phone: Fax: mmcgeady@specialdistrictlaw.com If to the County: c/o Open Space & Natural Resources 100 Third Street Castle Rock, CO Governmental Immunity. The County, and its commissioners, and the District, and its board members, and both parties respective officials, officers, directors, agents and employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities or protections provided by the Colorado Governmental Immunity Act, Section to 120, C.R.S., as amended. 11. General Provisions. (a) No Waiver - County. Enforcement of the County's rights under this Agreement shall be at the discretion of the County, and any forbearance by the County to exercise its rights under this Agreement in the event of any breach of any term 9

11 hereof by an Owner shall not be deemed or construed to be a waiver by the County of such term or of any subsequent breach of the same or any other term of this Agreement or of any of the County's rights under this Agreement. No delay or omission by the County in the exercise of any right or remedy upon a breach by an Owner shall impair such right or remedy or be construed as a waiver. (b) No Waiver - District. Enforcement of the District's rights under this Agreement shall be at the discretion of the District, and any forbearance by the District to exercise its rights under this Agreement in the event of any breach of any term hereof by an Owner shall not be deemed or construed to be a waiver by the District of such term or of any subsequent breach of the same or any other term of this Agreement or of any of the County's rights under this Agreement. No delay or omission by the District in the exercise of any right or remedy upon a breach by an Owner shall impair such right or remedy or be construed as a waiver. (c) Controlling Law. The interpretation and performance of this Agreement shall be governed by the laws of the State of Colorado. (d) Severability. If any provision of this Agreement, or the application thereof to any person or circumstance is found to be invalid, the remainder of the provisions of this Agreement, 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. (d) Entire Agreement. This Agreement sets forth the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior discussions, negotiations, understandings, or agreements related hereto, all of which are merged herein. (e) Successors and Assigns. The provisions of this Agreement shall run with the land comprising the Open Space Tracts and shall be binding upon the parties and their respective heirs, personal representatives, successors and a s s i g n s. (f) Assignment. No Owner shall assign its rights or delegate its duties under this Agreement except upon the prior written approval of the County, which approval shall not be unreasonably withheld. (g) Amendment. No amendment to this Agreement shall be effective unless a written instrument is signed and acknowledged by all parties hereto, and is recorded in the real property records of the Clerk and Recorder of Douglas County, Colorado. (h) No Third-Party Beneficiaries. With the exception of the parties to this Agreement and each of their legal representatives, successors and assigns, there shall exist no right of any person or entity to claim a beneficial interest in this Agreement or any rights arising by virtue of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Open Space Agreement as of the day and year first above written. 10

12 LOKAL TWO BRIDGES, LLC., A COLORADO LIMITED LIABILITY COMPANY By: Name: Title: STATE OF COLORADO ) )ss. COUNTY OF ARAPAHOE ) The foregoing instrument was acknowledged before me this day of, 2017, by RYAN LANTZ as MANAGER of LOKAL TWO BRIDGES, LLC, a Colorado limited liability Company. S E A L Witness my hand and official seal Notary Public My commission expires: 11

13 TWO BRIDGES METROPOLITAN DISTRICT By: David Lemnah, President STATE OF COLORADO ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of, 2017, by DAVID LEMNAH, as President of Two Bridges Metropolitan District. Witness my hand and official seal. My commission expires: Notary Public 12

14 THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF DOUGLAS, STATE OF COLORADO By: ROGER A. PARTRIDGE, Chair STATE OF COLORADO ) )ss. COUNTY OF DOUGLAS ) The foregoing instrument was acknowledged before me this day of, 2017, by Roger A. Partridge, as Chair of the BOARD OF COUNTY COMMISSIONERS, COUNTY OF DOUGLAS, STATE OF COLORADO. S E A L Witness my hand and official seal Notary Public My commission expires: 13

15 LEGAL DESCRIPTION Tracts A, B, E, F, G, H, J, K, L, M, N, Q, and R as well as all roads and rights of way together HIGH PRAIRIE INTERNATIONAL POLO CLUB RURAL SITE PLAN County of Douglas, State of Colorado Now known as Two Bridges