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  1. #1
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    Presentation on Trail Development Agreements

    For those who might be interested, here is my Prezi from the IMBA World Summit on Agreements for the Development of MTB Facilities.
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  2. #2
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    Great info.

    Question.
    Why did you throw non-exclusive easements in with perpetual easements in the easement slide, and also left out exclusive easements?

    I see you must have mentioned exclusive license agreements though in the next slide?

    Just curious.

    Example)
    I would think that when you are talking about obtaining trail easements across conservation easements on private property, the topic of exclusive easements might come up.

  3. #3
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    Quote Originally Posted by UncleTrail View Post
    Great info.

    Question.
    Why did you throw non-exclusive easements in with perpetual easements in the easement slide, and also left out exclusive easements?

    I see you must have mentioned exclusive license agreements though in the next slide?

    Just curious.

    Example)
    I would think that when you are talking about obtaining trail easements across conservation easements on private property, the topic of exclusive easements might come up.
    Thanks.

    The discussion on forms of TDAs was very much a 10,000 foot overview. The rights granted under an Easement Agreement are determined by the language of the Agreement. If the Agreement is silent as to exclusivity it will likely be interpreted as granting a nonexclusive easement; likewise if it is silent as to the term, it will probably be deemed to be perpetual. That being said, you are correct that easements can be exclusive or nonexclusive, they may also be perpetual or for a defined term.

    An exclusive trail easement may be appropriate in certain circumstances, but I would need to be very comfortable with my ability to control access.
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  4. #4
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    Quote Originally Posted by smeets1 View Post
    The discussion on forms of TDAs was very much a 10,000 foot overview. The rights granted under an Easement Agreement are determined by the language of the Agreement. If the Agreement is silent as to exclusivity it will likely be interpreted as granting a nonexclusive easement; likewise if it is silent as to the term, it will probably be deemed to be perpetual. That being said, you are correct that easements can be exclusive or nonexclusive, they may also be perpetual or for a defined term.
    Just seems like mixing apples and oranges.

    Length of time for the agreement (term) vs exclusivity are two different
    subjects. Right?

    I do understand what you are saying that if an easement is non-exclusive
    you might assume it's perpetual since the property owner retains the rights
    to grant an easement to another party on top of, or below, your trail
    easement.

    However, I rarely run across an easement that doesn't spell out
    exclusive vs non-exclusive and the term of the agreement. (I research road
    easements as part of my job in transportation.) Some older pre-1950
    agreements don't spell it out, but most recent agreements will do so.

    Example) A utility easement is often exclusive. i.e. A trail easement cannot
    be placed along/parallel/over the utility easement. "Exclusive" just refers to
    the fact that the easement cannot be shared.

    I've run into this on several occasions as we have a local utility company
    who will only accept exclusive easements for their utility lines.

    This really sucks for trail construction since utility corridors make very good
    trail routes for multi-use trails, but we cannot share the easement with this
    utility company, and they are granted easements during the development
    process often before a trail easement is even discussed. So a separate trail
    corridor must be located.

    The term or length of time the of the easement agreement is a separate
    subject. And if there is a term for the agreement, you might actually be
    looking at a license agreement instead.


    Quote Originally Posted by smeets1 View Post
    An exclusive trail easement may be appropriate in certain circumstances, but I would need to be very comfortable with my ability to control access.
    I'm confused. Are you mistaking "exclusive" as meaning user groups who
    can access/use the trail?

    Anyway, thanks for the info. I was just interested in where you were going
    with the exclusive vs term(life) of agreement thing.

  5. #5
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    Thanks for sharing!

    Is there a chance you could send out the native file for agreement used as an example? It would come in handy for some of the items I'm working on.

  6. #6
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    Quote Originally Posted by UncleTrail View Post
    Length of time for the agreement (term) vs exclusivity are two different subjects. Right?
    Correct.


    Quote Originally Posted by UncleTrail View Post
    I do understand what you are saying that if an easement is non-exclusive you might assume it's perpetual since the property owner retains the rights
    to grant an easement to another party on top of, or below, your trail
    easement.
    That is not what I intended. As you correctly noted, term and exclusivity are two different subjects. In determining whether a particular easement is perpetual, the intent of the parties controls. The best way to determine intent is to look at the easement agreement. If the easement clearly states that it is for a defined term the courts will give effect to that term. However if the term is not clearly stated in the agreement, the courts presume that the parties intended the easement to be perpetual. One reason for this presumption is that it provides security for the investment in the infrastructure necessary for the development of land.


    Quote Originally Posted by UncleTrail View Post
    The term or length of time the of the easement agreement is a separate subject. And if there is a term for the agreement, you might actually be
    looking at a license agreement instead.
    Not really, this is where you get into the distinction between granting an interest in land vs. a contractual right. Here is an example totally unrelated to trail development. I do corporate facilities work for a regional bank (buying, selling, developing, and leasing of bank branches). When the bank leases a branch, it leases the building together with an exclusive easement over a portion of land for its drive-thru and 24 hour ATMs and a nonexclusive easement for ingress and egress to and from the primary roads and the drive-thru. We record a memorandum of the lease so that the easements become “of record.” When we dot our “i’s” and cross our “t’s” the easements will survive a sale or foreclosure and be binding on future owners of the land. Since licenses are personal and do not run with the land, it is likely that a sale or foreclosure would terminate the bank’s rights under the licenses.



    Quote Originally Posted by UncleTrail View Post
    I'm confused. Are you mistaking "exclusive" as meaning user groups who can access/use the trail?
    Sorry, I did not connect the dots. I was referring to the indemnity obligations that I would expect to see in connection with an exclusive easement.
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  7. #7
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    Quote Originally Posted by jmitchell13 View Post
    Thanks for sharing!

    Is there a chance you could send out the native file for agreement used as an example? It would come in handy for some of the items I'm working on.
    I am happy to share, but when “borrowing” from an agreement it is important to understand the context in which the agreement was negotiated and the negotiated terms. PM me and we can discuss.
    Last edited by smeets1; 10-18-2012 at 05:46 AM. Reason: grammar
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  8. #8
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    Quote Originally Posted by smeets1 View Post
    Not really, this is where you get into the distinction between granting an interest in land vs. a contractual right. Here is an example totally unrelated to trail development. I do corporate facilities work for a regional bank (buying, selling, developing, and leasing of bank branches). When the bank leases a branch, it leases the building together with an exclusive easement over a portion of land for its drive-thru and 24 hour ATMs and a nonexclusive easement for ingress and egress to and from the primary roads and the drive-thru. We record a memorandum of the lease so that the easements become “of record.” When we dot our “i’s” and cross our “t’s” the easements will survive a sale or foreclosure and be binding on future owners of the land. Since licenses are personal and do not run with the land, it is likely that a sale or foreclosure would terminate the bank’s rights under the licenses.
    Good point. I've worked on several license agreements with our local utility company who "manages" city owned land.

    The City Utilities attorney would not agree to trail easements but would agree to 20 year license agreements for trails. Even for trails that were used long, long before the City owned the property or white men even settled this area (Ute Indian Trail).

    However when City Utilities came to us, County Parks, for an easement to access sewer lines which run across our open space parks with vac trucks, and needed to build roads in the parks to do so, we granted non-exclusive easements.

    It all get's rather confusing and makes me want to pull my hair out.

    Thanks again for the info. Sorry if I came across as overly critical.
    I just like to ask questions so I clearly understand what is being said.

  9. #9
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    Quote Originally Posted by smeets1 View Post
    I am happy to share, but when “borrowing” from an agreement it is important to understand the context in which the agreement was negotiated and the negotiated terms. PM me and we can discuss.
    PM sent. I totally understand that every situation is different, and agreements would be different depending on what terms have been negotiated.

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