HomeMy WebLinkAboutresolution.council.097-18 RESOLUTION # 97
(Series of 2018)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
APPROVING THE PURCHASE OF A CONSERVATION EASEMENT BETWEEN THE
CITY OF ASPEN AND STEPHANIE SOLDNER, OWNER OF A PROPERTY KNOWN AS
LOT 2 of 501 STAGE ROAD, ASPEN, CO 81611 AND AUTHORIZING THE CITY
MANAGER TO EXECUTE THE PURCHASE OF SAID CONSERVATION EASEMENT ON
BEHALF OF THE CITY OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a proposed Conservation
Easement between the City of Aspen and Stephanie Soldner, the owner of 501 Stage Road,
Aspen CO, a true and accurate copy of which is attached hereto as Exhibit "A"; and
WHEREAS, the City of Aspen Open Space and Trails Board recommends the purchase
of this conservation easement; and
WHEREAS, after due deliberation and consideration the City Council has determined that
it is in the best interest of the City of Aspen to approve said Contract.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves the purchase of a
Conservation Easement between the City of Aspen and Stephanie Soldner, a copy of which is
annexed hereto and incorporated herein, and does hereby authorize the City Manager to
execute said agreement on behalf of the City of Aspen. and, hereby authorizes the expenditure
of two hundred twenty-five thousand dollars ($225,000.00).
INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on
the 25th day of June 2018. d <9�L
Steven Ska ron, Mayor
I, Linda Manning, duly appointed and acting City Clerk do certify that the foregoing is a
true and accurate copy of that resolution adopted by the City Council of the City of Aspen,
Colorado, at a meeting held, June 25, 2018.
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Linda Manning, City C1 rk
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NOTICE TO TITLE COMPANY: Division of the property subject to this Easement is
prohibited in accordance with Section 7.1. This Easement further requires $100.00 be paid
by the recipient to Aspen Valley Land Trust or its successor at the time of every transfer of
this Property, as described in Section 16. This payment is exempt from the transfer fee
restrictions contained within C.R.S. 38-35-127.
DEED OF CONSERVATION EASEMENT IN GROSS
SOLDNER WILDLIFE RESERVE
Pitkin County
DEED OF CONSERVATION EASEMENT IN GROSS ("Easement") is granted this day
of , 2018, by the PAUL E. AND VIRGINIA I. SOLDNER FAMILY LIMITED
PARTNERSHIP LLLP, also known as the SOLDNER FAMILY PARTNERSHIP LLLP, (the
"Grantor") to and for the benefit of ASPEN VALLEY LAND TRUST, a Colorado nonprofit
corporation having offices at 320 Main Street, Suite 204, Carbondale, Colorado 81623 (the
"Trust"), and the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY,
COLORADO, a body corporate and politic ("Pitkin County"), as co-grantees (the Trust and Pitkin
County are hereinafter collectively referred to as the "Co-Grantees" and individually as a"Co-
Grantee") (all the parties are referred to collectively as the "Parties"). The Grantor refers to the
current owner of the property as well as future owners.
The following exhibits are attached hereto and made part hereof:
Exhibit A: Property Legal Description,
Exhibit B: Plat of Soldner,
Exhibit C: Baseline Acknowledgement.
RECITALS
WHEREAS, Grantor is the sole owner in fee simple of approximately 5 acres of real
property located on Stage Road, Aspen, Pitkin County, State of Colorado. The Easement
encumbers the 2.051-acre north parcel depicted as"Lot 2" on the Soldner Family LLLP
Subdivision plat attached hereto as Exhibit B, designated as Pitkin County Assessor Parcel
Number , which acreage is referred to herein and hereafter as the
"Property".
WHEREAS, the Property possesses open space, scenic, natural and wildlife values
(collectively, "Conservation Values") of importance to Grantor, the Trust, the people of Pitkin
County, and the people of the State of Colorado that are worthy of preservation;
WHEREAS, the Conservation Values of the Property are more particularly described in
the Baseline Documentation, described in Section 4 herein, and include the following
conservation purposes, the protection of which are recognized for qualified conservation
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contributions under Section 170(h)(4)(A) of the Internal Revenue Code of 1986, as amended
("IRC"), and under Section 1.170A-14(d) of the Treasury Regulations:
• Relatively Natural Habitat [§ 1.170A-14(d)(3)]. The Property consists primarily of a sage
meadow,which provides a haven for open field-loving birds, insects, ungulates and small
mammals, which have special conservation status on the global and state level. The property's
native plant communities and connectivity to other conserved properties adjacent to the Roaring
Fork River and Maroon Creek provide important relatively natural habitat and migration areas for
a diversity of wildlife. Although the property only encompasses two acres of wildlife habitat,
many species use the property as a link between valuable habitats off the property or the property
is a portion of a greater home range. Mule deer are found on the Property throughout the year
and elk depend on the property for important winter refuge and during the transition between
summer and winter.. Conserving this Property is most important for providing connectivity for
deer and elk moving between neighboring larger conservation easements on Deer Hill Open
Space and the BarX Ranch conservation easement, which provides connectivity in turn to the
Roaring Fork River and other important habitat for big game. According to the Baseline
Documentation Report, "there are at least 25 mammal species known or suspected to occur on
the property". The property's greatest conservation value is as a link between the many other
conserved properties in the area providing safe passage for elk,mule deer, and other species
between those properties as well as the Roaring Fork River and Maroon Creek riparian corridors.
• Open Space [§ 1.170A-14(d)(4)]. The Property qualifies as open space because it will be
preserved for the scenic enjoyment of the general public and will yield a significant public
benefit.
o Scenic Enjoyment. The Property adds to the scenic character of the local landscape in
which it lies, and connects two conserved open space properties on Deer Hill and Bar X
Ranch,which lie on either side of the Property. As such, the Property provides a degree of
openness, contrast and variety to the overall landscape, and is entirely visually accessible to
the general public from Stage Road and Harmony Lane, both public roads accessible to the
general public, and from recreational trails and nearby public lands, including Red Butte. In
addition, the Property provides a scenic open space buffer to the historic Soldner Art Center,
located adjacent to the Property, which is eligible for nomination to (and under consideration
for)the National Register of Historic Places.
o Governmental Policies. Conservation of the Property is promoted by local, state, and
federal governmental policies, including the goals and policies of Pitkin County and the City
of Aspen. The laws and regulations of the State of Colorado and the United States support
conservation of the Property relative to its scenic, wildlife habitat, agricultural heritage, and
natural area values:
• The Pitkin County Open Space and Trails program was founded in
1990 for the purposes of: (1) Shaping development(greenbelt and
viewplanes). (2) Incorporating or protecting significant wildlife habitat
and corridors. (3)Preserving historic agricultural and ranching activities.
(4) Protecting other public lands from the impacts of development. (5)
Preserving historic routes of ingress and egress to public lands and
waterways. (6) Providing recreational opportunities throughout Pitkin
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County which are directly related to and not inconsistent with the
foregoing purposes.
o Significant Public Benefit. The Property connects other conserved lands in a portion
of Pitkin County and the City of Aspen where there is a trend of intense development in the
vicinity of the Property. The Property is an island of unincorporated land surrounded by the
City of Aspen, which is undergoing intense residential and commercial development, making
preservation of open space buffers important. Development of the Property would contribute
to degradation of the scenic and natural character of the area, while its preservation will help
retain these scenic characteristics. The Property provides habitat connectivity to conservation
easements on Deer Hill and BarX Ranch, which are managed by the Trust and the City of
Aspen.
• Historic Preservation [§ 1.170A-14(d)(5)] The preservation of the Property has importance as
a historically important land area adjacent to historic structures eligible for listing on(and
currently being considered for) the National Register of Historic Places. The Property is part of
the grounds of the Soldner Art Center, and contributes to its scenic, historic, and cultural
integrity.
WHEREAS Paul Soldner is a major force in the evolution of contemporary ceramic art
and acknowledged for his many contributions to ceramic art and art history. Soldner is known for
creating American Raku, an entirely new ceramic firing technique, for his kiln designs, and for
inventing Soldner Clay Mixers and Soldner electric potter's wheels for which he held 7 patents.
Beginning in 1956 Paul and his wife Ginny Soldner hand-built their unique home and art studio
on 5 acres in Aspen Colorado comprising 5 buildings, which integrated environmental principles
such as use of solar energy and repurposing materials. The property has been subdivided into 2
parcels, with all buildings and improvements located on the south parcel. This conservation
easement is preserving the north parcel which is undeveloped and free from any buildings or
other improvements. The Soldner home and studio on the south parcel also contain Paul and
Ginny's private art collection of ceramic artwork made by many of the important American
ceramic artists of the second half of the 20th century. The Soldner home is unique, containing
many examples of early artwork by influential 20th century ceramic artists who were Paul and
Ginny Soldners' friends and colleagues. The Soldner heirs hope to create a Cultural Art Center in
the future on the south parcel adjacent to the conserved parcel in order to provide access to this
unique property to artists, innovators and the public, locally and around the world.
WHEREAS, Grantor intends, as owner of the Property,to convey to the Co-Grantees the
right to preserve and protect the Conservation Values of the Property in perpetuity and the Co-
Grantees agree by accepting this grant to honor the intentions of Grantor stated herein and to
preserve and protect in perpetuity the Conservation Values of the Property;
Whereas Pitkin County's portion of the purchase price was drawn from its Open Space
Fund, the County's interest therein is subject to the prohibition on conversion of open space
property, as provided in the Pitkin County Home Rule Charter at section 13.5.3;
Whereas City of Aspen's portion of the purchase price was drawn from its Open Space
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Fund,the City's interest therein is an interest in real property acquired for open space purposes,
subject to the prohibition on conversion of open space property, as provided in the Aspen Home
Rule Charter at section 13.4;
WHEREAS,the State of Colorado has recognized the importance of private efforts toward
the preservation of natural systems in the State by the enactment of C.R.S. §§38-30.5-101 et seq.;
WHEREAS, the Trust is a charitable organization as described in IRC Section 501(c)(3)
and is a publicly-supported organization as described in IRCSection 170(b)(1)(A)whose primary
purpose is to preserve and protect the natural, scenic, agricultural, historical, and open space
resources of the greater Roaring Fork Valley area, including the area in which the Property is
located, by assisting landowners who wish to protect their land in perpetuity, and is a"qualified
organization"to do so within the meaning of IRC Section 170(h)(3)possessing the resources and
commitment to protect and defend the conservation purposes of this grant;
WHEREAS,the Trust also meets requirements of Colorado law as a qualified recipient
for a conservation easement under C.R.S. §38-30.5-104, and is certified to hold conservation
easements for which a state tax credit is claimed by the State of Colorado's Division of Real
Estate as outlined in C.R.S. §12-61-724 and in Rule 2.1 of the Code of Colorado Regulations,
Qualifications for Certification to Hold Conservation Easements (4 CCR 725-4, Rule 2.1), for the
current year. The Trust is also accredited by the Land Trust Accreditation Commission, a
national accreditation program sponsored by the Land Trust Alliance;
WHEREAS, the Board of Directors of the Trust has duly authorized the Trust's Executive
Director or her designee to execute and accept this conservation easement on behalf of the Trust;
WHEREAS, the Board of County Commissioners of Pitkin County, Colorado is a body
corporate and politic and is duly authorized to execute and accept the Easement and has an open
space program dedicated to the conservation of land and is qualified to hold conservation
easements as a government entity under C.R.S. 38-30.5-104; and
WHEREAS, the Easement is partially purchased and partially donated because the
purchase price is less than the appraised value of the Property. The purchase price of the
Easement was paid in part with funds contributed by Pitkin County, Aspen Valley Land Trust,
and the City of Aspen, Colorado, a Colorado municipal corporation(the "City"), for the purpose
of protecting certain ecological and open space values important to the residents and visitors of
the City.
AGREEMENT
NOW, THEREFORE, in consideration of the matters above,the mutual covenants,
terms, conditions and restrictions contained herein, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. GRANT
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Grantor hereby voluntarily and irrevocably grants and conveys to the Co-Grantees this
unrestricted gift of a perpetual Conservation Easement in gross ("Easement") over and across the
Property pursuant to C.R.S. §§38-30.5-101 et seq.,through the terms mutually agreed to in this
Easement, and to hold said Easement unto the Co-Grantees and their successors and assigns
forever. Grantor agrees that the grant of the Easement gives rise to a property right, immediately
vested in the Co-Grantees, which shall constitute a binding servitude upon the Property and shall
be subject to prior reservations, easements, encumbrances and exceptions of record, except as
otherwise set forth herein.
2. PURPOSES
Pursuant to the terms of C.R.S. §§38-30.5-101 et seq., the purposes of the Easement are to
assure that the Property will remain forever predominantly in its scenic,natural and open space
condition, subject to the uses of the Property permitted hereunder, to protect and preserve the
Conservation Values in perpetuity,to prevent any use of the Property that is inconsistent with the
preservation and protection of the Conservation Values and, in the event of their degradation or
destruction, to require restoration of such Conservation Values. The primary purpose of this
Easement is to protect the wildlife habitat of the Property, the protection of which creates a
natural buffer and habitat connectivity between important mule deer and elk winter range on the
neighboring Deer Hill and Bar X conservation easements. The secondary purpose is to protect
scenic views of the Property visible to the general public from public rights-of-way, as well as the
scenic characteristics of the neighboring historic Soldner Art Center. The Easement protects both
the primary and secondary purposes, and both are collectively defined as the "Purposes."
The Purposes are prioritized in order to guide the perpetual protection, enforcement, and
management of the Purposes over time pursuant to Sections 7 and 12 herein; and the approval,
amendment, and termination requests relating to the Purposes pursuant to Sections 11, 19, and 14,
respectively. Should the Property's use for the primary purposes become impossible to achieve,
the Property shall continue to be protected for the secondary purposes, and remain available for
the primary purpose. Should the Property's use for the secondary purpose become impossible to
achieve, the Property remain available for the primary and secondary purposes. Should the
Property's use for all of the listed purposes become impossible, the parties shall proceed in
accordance with Sections 14 and 15 below, and consistent with applicable laws, (as defined in
Section 21.1), to continue to honor the original purposes set out for protection by this Deed.
3. INTENT
Subject to the express reservations and prohibitions described in Section 7 below, the
Parties' intent is to permit all uses of the Property that are consistent with the Purposes of the
Easement(defined above) as determined by the Co-Grantees in their sole discretion. Nothing in
this Easement is intended to prevent Grantor's quiet and reasonable enjoyment of the Property, or
to compel a specific use of the Property other than the preservation and protection of the
Conservation Values.
4. BASELINE DOCUMENTATION
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The Parties acknowledge that a Baseline Inventory and Present Condition Report of the
Conservation Values and relevant features of the Property was prepared on
, 2018 by Colorado Wildlife Science, LLC, a company familiar with
conservation easements, the Property, and the environs, and is on file with the Parties and
incorporated herein by reference(collectively,the "Baseline Documentation"). The Parties
acknowledge and agree that by the execution of this Easement they approve, acknowledge, and
accept the Baseline Documentation as an accurate representation of the condition of the Property
at the time of this grant. The Parties agree that the Baseline Documentation is not intended to
preclude the use of other evidence to establish the present condition of the Property should a
controversy arise over its use.
5. RIGHTS OF THE CO-GRANTEES
To fulfill the Purposes of this Easement, Grantor hereby conveys to the Co-Grantees a
property right and interest in the form of this Easement, which immediately vests with the Co-
Grantees (as agreed in Section 1 and stipulated in Section 14.3,herein), and which the Parties
agree includes the following affirmative rights:
5.1. The right to all development rights deriving from, or associated with, the Property
in any way("Co-Grantees' Development Rights"), except those expressly reserved by Grantor
in Section 7 of this Easement, shall be held by the Co-Grantees in perpetuity in order to fulfill the
Purposes of this Easement, and to ensure that such rights are forever released and terminated as to
Grantor and its successors and assigns;
5.2. The right to preserve and protect the Conservation Values in perpetuity;
5.3. The right to enter upon the Property at least annually at reasonable times agreed to
mutually by Grantor and the Co-Grantees to inspect the Property thoroughly, to monitor
Grantor's compliance with, and otherwise enforce the terms of this Easement; provided that such
entry shall not unreasonably interfere with Grantor's use and quiet enjoyment of the Property,
with the exception that no such notice shall be required in the event the Co-Grantees reasonably
believe that immediate entry upon the Property is essential to prevent or mitigate a violation of
the Easement;
5.4. The right, as an interest owner in the Property,to prevent or enjoin Grantor or
third parties (whether or not invitees of Grantor) from engaging in any activity or use of the
Property that is inconsistent with the Purposes of the Easement; and the right to require Grantor
or third parties, as may be responsible,to restore such areas or features of the Property that are
damaged by any inconsistent activity or use, subject to the qualifications of Section 13.5 herein;
5.5. The right to place and maintain on the Property a sign or signs indicating that a
conservation easement is held by the Trust on the Property. The size of the sign and the location,
design and content of such signs shall be mutually agreed to by the Trust and Grantor in
accordance with applicable signage regulations and the terms of this Deed. The Trust shall be
responsible for the maintenance of any such signs.
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5.6. The right, as an interest owner in the Property,to receive notification from and
join Grantor as a party to any condemnation or eminent domain proceedings affecting the
Property (as described in Section 14), or to any oil and gas leases, surface use and agreements,
damage agreements or rights-of-way that may be proposed, granted or required hereafter as a
result of mineral development(as described in Section 7.3.F) or other activities with the potential
to impact the surface of the Property or its Conservation Values; and
5.7. Any other rights that the Parties may jointly approve consistent with the Purposes
of the Easement, including adding additional purposes or defining additional Conservation
Values.
6. RIGHTS OF GRANTOR
Grantor reserves to itself and to its personal representatives, heirs, successors, and assigns,
all rights and obligations accruing from its ownership of the Property, including the right to
engage in activities and uses of the Property not prohibited herein and that are consistent with the
Purposes of the Easement,pursuant to IRC §170(h)(4) and C.R.S. §38-30.5-102.
7. PROHIBITED AND PERMITTED USES/RESERVED AND RESTRICTED
RIGHTS
The following uses and practices by Grantor, though not an exhaustive recital, are either
permitted or prohibited by this Easement. Certain uses, where indicated, require notice to or
approval from the Co-Grantees, according to Sections 10 and 11. Any other activities that are
inconsistent with the Purpose of this Easement or with preservation and protection of the
Conservation Values are prohibited. Grantor shall request the Co-Grantees' prior approval for
uses not expressly described herein when there is a question as to their consistency with the
Purposes of this Easement.
7.1. No Division of Property. Hereafter, Grantor shall not divide or subdivide
(including de facto subdivision)the Property, and at all times the Property shall be owned as a
single parcel. Ownership of the Property by joint tenancy or tenancy in common is permitted;
however, actions to partition or condominiumize the Property are prohibited.
7.2. Buildings and Improvements. At the time of the grant of this Easement, there
exist no buildings or improvements on the Property. The construction or location of any
improvements (defined as permanent or temporary buildings, structures, mobile homes or other
physical, human-introduced development of or on the Property, including but not limited to
landscaping, fences, roads, utilities, septic systems, and golf courses) is prohibited on the
Property, except as follows in this Section 7.2:
A. Existing Improvements.There are no improvements and there shall be no
improvements on the Property, also depicted in Exhibit B.
B. Recreational Improvements. Recreational improvements including buildings, trails,
golf courses and other recreational amenities, are prohibited on the Property.
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C. Utilities, Irrigation and Other Technology. The installation of or granting of
easements and rights-of-way for utilities,utility lines, and other technological
infrastructure is prohibited without prior approval from the Co-Grantees, except as
permitted by easements or rights-of-way existing prior to the grant of this Easement.
D. Signage or Billboards. No signs or billboards shall be displayed or placed on the
Property except for signs informing the public of funding partners and Co-Grantees that
participated in the conservation of the Property.
7.3. Natural Resource Management and Property Use. Grantor recognizes the
importance of good resource management and stewardship to preserve and protect the
Conservation Values. Accordingly, Grantor agrees not to alter the topography of the Property
through placement or removal of soil, gravel, land fill, or other materials, nor to impair or disturb
the relatively natural habitat for native plants, wildlife, or ecosystems on the Property except: (a)
as necessary in emergencies including wildfire, flood and landslide; (b)as approved by the Co-
Grantees and any required permitting agencies for habitat enhancement or restoration purposes;
(c) as necessary for improvements permitted in Section 7.2, above; and (d) as necessary to uses
permitted in this Section 7.3,below. No surface alterations may be made that damage the
Conservation Values.
A. Livestock and Grazing. Livestock and grazing are prohibited on the Property, except
occasional livestock grazing to control weeds for short periods.
B. Berm. Grantor may build a berm of up to 5 feet in height on Lot 2 for the purpose of
enhancing and protecting wildlife passage.
C. Weed Control. Grantor agrees to control noxious weeds and invasive plant species
on the Property in accordance with the Colorado Noxious Weed Act codified at C.R.S. 35-
5.5-101 et seq., as amended, and other Applicable Laws, and shall not intentionally
introduce noxious weeds or invasive species to the Property.
D. Trash and Dumping. Grantor shall not dump or permanently accumulate trash,
garbage, or other refuse on the Property, except for agricultural by-products and
compostable matter produced or used on the Property.
E. Minerals. Grantor owns all of the mineral rights associated with the Property, and
Grantor agrees not to separate or transfer any portion of the mineral rights from the
Property. In addition, Grantor shall not engage in, lease or otherwise permit the
development of such rights on the Property, except by non-surface occupancy methods that
will not impact the surface of the Property or otherwise damage the Conservation Values
(including ground and surface water resources).
a. Future Non-Surface Mineral Development. Grantor shall notice and obtain the
consent of the Trust prior to engaging in or entering into any permitted non-surface
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occupancy mineral development, units,pools, leases, or agreements affecting the
Property or underlying minerals, of which documents, leases, and agreements (the
"Mineral Agreement" or"Mineral Agreements") shall be subordinate to this
Easement, shall reference this Easement, and summarize the restrictions of this
paragraph. The Trust shall claim no rights to proceeds or royalties from any
permitted mineral development, except that the Co-Grantees shall have the right to
charge a fee to cover its time and expenses for reviewing any proposed Mineral
Agreement. Grantor retains sole execution authority for all permitted Mineral
Agreements, excluding surface use agreements, for which the Co-Grantee retains the
right to execute together with Grantor,provided the Co-Grantees have been properly
notified and have had the opportunity to review the Mineral Agreement as required
herein.
b. Current Mineral Leases and Development. At the time of the Easement's grant,
there are no active oil and gas or other mineral leases or agreements on or affecting
the Property.
F. Water Riahts. There are no water rights associated with this Property.
G. Commercial and Industrial Activities. Grantor shall not conduct industrial or
commercial activities on the Property.
8. PUBLIC ACCESS
By terms of this Easement, Grantor does not afford the public any more than visual access
to any portion of the Property. Grantor may permit public access to the Property on such terms
and conditions as it deems appropriate,provided that such access is consistent with the terms and
Purposes of this Easement. Grantor shall ensure that any public access permitted on the Property
is consistent with Colorado's recreational use statute C.R.S. § 33-41-101 et seq. to limit liability
of Co-Grantees, and provides indemnity to the Co-Grantees for the public's access to and use of
the Property.
9. REPRESENTATIONS AND WARRANTIES
Grantor represents and warrants that, after reasonable investigation and to the best of its
knowledge:
9.1. Except for fuels customarily used or transported in connection with agricultural
and construction activities; no substance defined, listed, or otherwise classified pursuant to any
federal, state, or local law or regulation as hazardous, toxic,polluting, or otherwise or threatening
to human health or the environment exists or has been used or released on the Property;
9.2. There are not now any underground storage tanks located on the Property, and no
underground storage tanks have been removed from the Property in a manner not in compliance
with Applicable Laws);
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9.3. Grantor and the Property are in compliance with all federal, state, and local laws
and regulations applicable to the Property and there is no existing, pending or threatened
litigation affecting or relating to the Property;
9.4. Grantor has good and sufficient title to the Property and has lawful authority to
grant and convey the Easement,that any mortgages or liens on the Property are subordinate to the
terms of this Easement, and that Grantor shall warrant and forever defend the title to the
Easement against all and every person or persons lawfully claiming by, through or under Grantor,
the whole or any part thereof, except for rights-of-way, easements,restrictions, covenants and
mineral reservations of record.
10. NOTICE OF INTENTION TO UNDERTAKE CERTAIN PERMITTED
ACTIONS; REQUESTS FOR APPROVAL
The purpose of requiring Grantor to notify the Co-Grantees before undertaking certain
activities and uses of the Property, as identified in Section 7 or elsewhere in this Easement, is to
afford the Co-Grantees an opportunity to update their records and, if approval is required,to
ensure that the activities in question are consistent with the terms and Purposes of this Easement.
Grantor shall provide notice to Co-Grantees and seek their approval, according to Section 11
below, for proposed activities or uses not described herein when there is a question as to
consistency with the terms or Purposes of the Easement or protection of the Conservation Values.
Whenever notice and the Co-Grantees' approval are required, Grantor shall notify the Co-
Grantees in writing not less than 60 days prior to the date Grantor intends to undertake the
activity in question, and describe the nature, scope, design, location,timetable, and any other
material aspect of the proposed activity in sufficient detail to permit the Co-Grantees to make an
informed judgment as to the activity's consistency with the terms and Purposes of this Easement.
Whenever notice is required without the Co-Grantees' approval, Grantor shall notify the Co-
Grantees in writing not less than 30 days in advance of the proposed activity, unless this
Easement provides otherwise.
11. CO-GRANTEES' APPROVAL
Whenever this Easement requires that Grantor obtain the Co-Grantees' approval for any
activity or use of the Property, or if Grantor desires approval for any activity not clearly allowed
by the Easement, or if the Co-Grantees believe a use is use not clearly consistent with the terms or
Purposes of the Easement, such approval shall be given in the Co- Grantees' sole discretion,
according to whether the Co-Grantees determine that such activity will not damage the
Conservation Values,which burden of proof lies with the Grantor. The Co-Grantees' approval
may be withheld in its sole discretion if the Co-Grantees determine that the proposed activity
would damage the Conservation Values or be otherwise inconsistent with the terms and Purposes
of this Easement. The Co-Grantees shall set forth their determination, and the reason(s) for the
determination, in writing to Grantor within 30 days of receipt of Grantor's written notice and
request for approval (as described in Section 10, above). If Co-Grantees do not respond within 30
business days, they shall be deemed to have approved the requested activity. In the event the Co-
Grantees should withhold their approval,they may also specify to Grantor any modifications to
the request that might render the request consistent with the terms and Purposes of the Easement.
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Where Co-Grantee's approval is required, Grantor shall not undertake the requested activity until
Grantor has received Co-Grantee's approval in writing.
12. TRUST'S REMEDIES: ENFORCEMENT
The Co-Grantees shall have the right to prevent and correct, or require correction of,
violations of this Easement. The Co-Grantees are not responsible for monitoring for or enforcing
violations of any Applicable Laws (as defined in Section 21.1), permits, or third party contracts
affecting the Property now or in the future, except to the degree that any violations of Applicable
Laws also violate this Easement, damage the Conservation Values, or be otherwise inconsistent
with the Purposes or terms of this Easement.
If the Co-Grantees find what they believe is a violation, or a threat of a violation of this
Easement, the Co-Grantees shall notify Grantor and the City of Aspen of the nature of the alleged
violation. Upon receipt of this notice, Grantor shall immediately discontinue the activity until
resolution is achieved with the Co-Grantees, or ensure any third party's activity is discontinued
that could increase or expand the alleged violation and shall either: (a) restore the Property within
60 days to its condition prior to the violation, or(b) if immediate restoration is not possible,
Grantor shall submit a restoration plan to the Co-Grantees within 60 days; or(c)provide a written
explanation to the Co-Grantees of the reason why the alleged violation should be permitted. If the
Co-Grantees are not satisfied with Grantor's written explanation or restoration actions, the Parties
agree to meet as soon as possible to resolve their differences. If a resolution cannot be achieved at
the meeting, the Parties agree to attempt to resolve the dispute pursuant to Section 12.1, below.
At any time, including if Grantor does not immediately discontinue any activity that could
increase or expand the alleged violation, or if the Co-Grantees believe an ongoing, imminent, or
threatened activity violates the Easement, the Co-Grantees may take immediate legal action to
stop the activity without prior notice to Grantor, without waiting for the period provided for cure
to expire, and without waiting for the 60-day mediation period to expire. The Co-Grantees may
bring an action at law or in equity, ex parte as necessary, in a court of jurisdiction to enforce the
terms of this Easement and to enjoin a violation by temporary or permanent injunction, which
may require restoration of the Property to the condition that existed prior to the violation. The Co-
Grantees' remedies described here shall be in addition to all remedies now or hereafter existing at
law or in equity, and shall include, without limitation, the right to recover damages for violation
of the terms of this Easement or injury to the Conservation Values, including damages for the loss
of scenic, aesthetic, or environmental values, and the right to other remedies designed to deter bad
acts, including restitution of tax benefits or payments for the Easement, disgorgement of profits,
and liquidated and.punitive damages. The Co-Grantees may apply any damages recovered to the
cost of undertaking restorative, remedial or corrective action on the Property without limiting
Grantor's liability for such damages or corrective action.
Enforcement of the terms of this Easement shall be at the sole discretion of the Co-
Grantees, and any forbearance by the Co-Grantees to exercise its rights under this Easement shall
not be construed to be a waiver by the Co-Grantees of their rights, or of any term(s) of the
Easement, including any subsequent breach of the same or other term(s) of this Easement. No
11
delay or omission by the Co-Grantees in the exercise of any right or remedy shall impair such
right or remedy or be construed as a waiver. The failure of the Co-Grantees to discover a
violation or to take immediate legal action shall not bar the Co-Grantees from doing so at any
time after the date upon which the violation is discovered.
All reasonable costs incurred by the Co-Grantees in enforcing the terms of this Easement
by legal or other means, including but not limited to costs of pursuing legal or other action and
reasonable attorney's fees, and costs of restoration necessitated by Grantor's violation of the
terms of this Easement, shall be borne by Grantor, unless Grantor ultimately prevails in a judicial
enforcement action or a court finds as a matter of law that the Co-Grantees acted in bad faith in
seeking to enforce the terms of this Easement, in which case the Co-Grantees and Grantor shall
bear their own costs. If the Parties agree to mediation, the Parties will equally share the cost of the
mediator's fees;
In order to protect the public investment in this Easement,the City(the "back-up
enforcement party") is granted the individual right as a back-up enforcer to join the Co-Grantees
in enforcing the terms of this Easement, or to pursue enforcement of this Easement without the
participation of the Co-Grantees only and exclusively in the event the Co-Grantees decline
enforcement in accordance with this Section, and invite the City to enforce in their stead. In
addition, should the Co-Grantees fail to monitor the Property annually as required by this
Easement, the City may elect to assume monitoring responsibilities for that calendar year. The
City may only exercise these back-up rights of enforcement after receiving such invitation from
the Co-Grantees, and thereafter providing thirty (30) days' notice to Grantor, and the Co-Grantees
of the alleged violation and the steps being taken to correct the alleged violation.
12.1. Mediation. If a dispute arises between the Parties concerning the consistency of
any proposed activity with the terms of this Easement, and Grantor agrees not to proceed with the
activity pending resolution of the dispute,the Parties shall attempt to negotiate a resolution for 30
days. If unresolved, either Party may refer the dispute to mediation by written request to the
other. Within 10 days of the receipt of such request,the Parties shall select a trained and impartial
mediator,preferably with experience in real property law and land conservation. If the Parties are
unable to agree on a mediator, or no such experienced mediator is available, then the Parties shall
each select a qualified mediator and those two mediators shall select a mediator who shall alone
mediate the dispute. Mediation shall then proceed in accordance with the following guidelines:
A. Purpose. The purpose of the mediation is to: (a)promote discussion between the
Parties; (b)help the Parties develop and exchange information concerning the issues in
dispute; and (c) help the Parties develop proposals that will enable them to arrive at a
mutually acceptable resolution. The mediation is not intended to result in or be interpreted
as resulting in any modification or amendment of the terms, conditions, or restrictions of
this Easement;
B. Participation. The mediator may meet with the Parties and their counsel jointly or
ex parte. The Parties agree that they will participate in the mediation process in good faith
and expeditiously, except in cases where the Co-Grantees believe that there is ongoing
damage to Conservation Values, in which case the Co-Grantees can suspend its
12
involvement in the mediation to remedy this threat of ongoing violation. 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 confidential and
may be disclosed by the mediator as the mediator determines unless a party demands
confidentiality. The mediator shall not be subject to subpoena by any Party in any
subsequent litigation;
D. Time Period and Fees. Neither Party shall be obligated to continue the mediation
process beyond a period of 60 days from the date of the initial meeting with the mediator,
nor if the mediator concludes that there is no reasonable likelihood that continuing
mediation will result in a mutually agreeable resolution. The Parties shall each bear 50% of
the mediator's fees.
13. COSTS,LIABILITIES,TAXES,AND ENVIRONMENTAL COMPLIANCE
13.1. Costs, Legal Requirements and Liabilities. Grantor retains all responsibilities
and obligations and shall bear all costs and liabilities related to the ownership, operation, and
maintenance of the Property, including the payment of property and other taxes related to the
Property, and maintenance of liability insurance coverage. Grantor shall make best efforts to keep
the Property free of any liens arising out of any work performed for, materials furnished to, or
obligations incurred by Grantor.Nothing in this Easement shall be interpreted as prohibiting
Grantor from obtaining loans secured by deeds of trust encumbering the Property,provided any
such deeds of trust are subordinate to this Easement. Grantor shall pay before delinquency all
taxes, assessments, fees and charges of whatever description levied on or assessed against the
Property by competent authority and shall furnish County with satisfactory evidence of payment
upon request;
13.2. Control.Nothing in this Easement shall be construed as giving rise, in the absence
of a judicial decree, to any right or ability of the Co-Grantees or the City of Aspen to exercise
physical or managerial control over the day-to-day operations of the Property, or over any of
Grantor's activities on the Property, or otherwise to become an operator with respect to the
Property within the meaning of The Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended ("CERCLA"), and any Colorado state law counterpart;
13.3. Hold Harmless. Grantor shall hold harmless, indemnify and defend the Co-
Grantees, the City of Aspen and their members, directors, officers, employees, agents, and
contractors and the heirs, personal representatives, successors, and assigns of each of them
(collectively, the"Indemnified Parties") from and against all liabilities,penalties, costs, losses,
damages, expenses, causes of action, claims, demands or judgments including, without limitation,
reasonable attorneys' fees, arising from or in any way connected with: (a)the injury to or the
death of any person, or damage to property, occurring on or about or related to the Property,
regardless of cause, unless and to the extent such injury, death, or damage was caused by the
willful and wanton act(as defined by C.R.S. §13-21-102(l)(b))or omission of any of the
Indemnified Parties; (b)the violation or alleged violation of, or other failure to comply with, any
13
state, federal, or local law,regulation, or requirement, including, without limitation, CERCLA, by
any person other than any of the Indemnified Parties, in any way affecting, involving, or relating
to the Property; (c)the presence or release of hazardous or toxic substances in, on, from, or under
the Property at any time, of any substance now or hereafter defined, listed, or otherwise classified
pursuant to any federal, state, or local law, regulation, or requirement as hazardous,toxic,
polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or
threatening to human health or the environment,unless and to the extent caused by any of the
Indemnified Parties; (d)payment of taxes imposed upon or incurred by the Property as a result of
this Easement, including property taxes and the sale of income tax credits acquired as a result of
this Easement; (e)tax benefits or consequences of any kind which result or do not result from
entering into this Easement; and (f)the obligations, covenants, representations, and warranties
described herein;
13.4. Waiver of Certain Defenses. Grantor hereby waives the defenses of laches,
estoppel and prescription. Grantor and waives any defenses or rights available to Grantor
pursuant to C.R.S. §38-41-119 and agrees that the one-year statute of limitation provided by
C.R.S. §38-41-119 does not apply to this Easement;
13.5. Acts Beyond Grantor's Control.Nothing contained in this Easement shall be
construed to entitle the Co-Grantees 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.
Grantor is not responsible for acts of third parties not authorized to access the Property, but shall
be responsible for all third parties, including guests or invitees, authorized by Grantor to access
the Property. The Co-Grantees retain the right to enforce the terms of this Easement against third
parties or Grantor or both for violations of the Easement or damage to the Property. Grantor shall
make best efforts to prevent third parties from performing, and shall not knowingly allow third
parties to perform, an act on or affecting the Property that is inconsistent with the Purpose of this
Easement.
14. EXTINGUISHMENT AND CONDEMNATION
14.1. Extinguishment. The Parties agree that any changes in the economic viability of
the uses permitted or prohibited by this Easement, or changes to neighboring land and its use shall
not be deemed circumstances or conditions justifying the termination or extinguishment of the
Easement. In addition, the inability of Grantor, or Grantor's heirs, successors or assigns, to
implement any or all of the uses permitted under this Easement shall not impair the validity of the
Easement, or be considered grounds for termination or extinguishment of this Easement. Further,
this Easement cannot be abandoned, released,terminated, extinguished, or affected by adverse
possession.
If circumstances arise in the future that render the Purposes of this Easement impossible to
accomplish, the Easement can only be terminated or extinguished, in whole or in part, by judicial
proceedings after a court of competent jurisdiction has found that the Purposes of this Easement
are impossible to accomplish. Each Party shall promptly notify the other and the City of Aspen
14
when it first learns of such circumstances. The amount of the proceeds to which the Co-Grantees,
and the City of Aspen shall be entitled from any sale, exchange, or involuntary conversion of all
or any portion of the Property subsequent to such termination, shall be determined, unless
otherwise provided by Colorado law at the time, in accordance with the Proceeds paragraph
below, and such proceeds shall be used by the Co-Grantees, City of Aspen in a manner consistent
with the conservation Purposes of the original Easement contribution, as required by §1.170A-
14(g)(6)(i) of Treasury Regulations;
14.2. Condemnation. If the Easement is taken by condemnation, or by purchase in lieu
of condemnation by any public, corporate, or other authority so as to terminate the Easement in
whole or in part, Grantor and the Co-Grantees shall act jointly to recover the full value of the
interests in the Property subject to the taking or in-lieu purchase, and all damages resulting there
from. All expenses reasonably incurred by the Parties in connection with the taking or in-lieu
purchase shall be paid out of the amount recovered. The Co-Grantees shall receive a share of the
proceeds equal to the consideration they paid for the Easement divided by the value of the
Property determined by the appraiser hired by Grantor to value the Property before it was
encumbered by the Easement. The Co-Grantees and the City of Aspen's share of the balance of
the amount recovered shall be determined by multiplying that balance by the percentage set forth
in Proceeds paragraph below.
14.3. Proceeds. This Easement constitutes a real property interest immediately vested in
the Trust, the value of which is to be determined using a fair market value that is equal to the
proportionate value that the Easement at the time of the gift, bears to the value of the Property as
a whole at the time of the gift, according to the following fraction:
$500,000 purchase price of the conservation easement
Appraised fair market value of the property accepted by Co-Grantees
Should the Easement be taken for public use or otherwise terminated according to the
Extinguishment and Condemnation paragraphs above, the Co-Grantees and the City of Aspen
shall be entitled to compensation for their proportionate interests, which shall reflect the
proportionate monetary contribution of each toward the $500,000 purchase price of the
Conservation Easement by the Co-Grantees, which is as follows: the Aspen Valley Land Trust's
is 10% ($50,000 contributed), Pitkin County's is 45% ($225,000 contributed), and the City's is
45% ($225,000 contributed).
15. ASSIGNMENT OF EASEMENT
In the event a Co-Grantee is no longer able to carry out its duties and obligations under this
Easement, or if circumstances change so that another similar organization is better able to carry out
such duties and obligations, such Co-Grantee may,upon prior notice to the other Co-Grantee,
Grantor, City of Aspen and with prior written consent of City of Aspen,transfer the Easement and
assign its rights and obligations under this Easement solely to the other Co-Grantee or to a qualified
land conservation organization that is, at the time of transfer: (a) willing and able to accept the
transfer; (b) a qualified organization under IRC §170(h) (or any successor provision then
applicable), and its applicable Treasury Regulations; (c) authorized to hold conservation easements
15
under Colorado law; (d) charged with a land conservation mission similar to that of the Trust; and
(e) approved by the other Co-Grantee. Should a Co-Grantee be unable to assign the Easement
according to the procedure set out in this Section 15, or should either the other Co-Grantee, or the
City refuse to consent to the transfer, or should the Trust cease to exist,then a court with competent
jurisdiction shall assign such Co-Grantee's interest in the Easement to an organization meeting the
criteria described in subsections (a)-(d)herein this paragraph, and shall provide Grantor, City of
Aspen notice of and an opportunity to participate in the court proceeding. If both of the Co-
Grantees should be unable to monitor the Easement at least annually, or become unable or
unqualified to enforce the terms of the Easement, the City shall consult with the Co-Grantees and
provide the Co-Grantees an opportunity to address the City's concerns. If the concerns of the City
are not addressed to its satisfaction, such entity shall have the right to require that the Co-Grantees
assign this Easement to an organization designated by the City that meets the criteria described in
subsections (a)-(d) above in this paragraph. As a condition of such transfer, the transferee shall
expressly agree, in writing,to uphold the Purposes of the Easement and to otherwise assume all of
the obligations and liabilities of the Co-Grantees set forth in this Easement. After such transfer, the
Co-Grantees shall have no further obligation or liability under this Easement.
16. SUBSEQUENT TRANSFERS OF PROPERTY
Grantor agrees to notify any party who may purchase, lease, or otherwise hold interest in
this Property of the terms of this Easement, and to provide a copy of the Easement and the
Baseline Documentation to such party if requested. The conveyance document shall expressly
refer to this Easement and acknowledge that all subsequent owners are subject to its terms. The
Co-Grantees can meet with any prospective recipient of the Property to explain the terms of this
Easement. The failure of Grantor to perform any act required by this section shall not impair the
validity of this Easement or limit its enforceability in any way.
In addition, at any time Grantor transfers the Property to a third party, including all
subsequent transfers, that party shall pay$100.00 to the Trust to cover administrative costs
associated with the transfer, as well as to put the third party recipient on notice of the existence of
this Easement. This payment is exempt from transfer fee restrictions of C.R.S. §38-35-127.
17. NOTICES
Any communication required under the terms of this Easement shall be in writing and
physically delivered or sent by first class mail, postage prepaid,to the following addresses, or to
such other address as either Party or the City may designate in the future by written notice to the
other. Other communications not required by this Easement may be in the form of email or other
electronic communication:
To Grantor: Paul E. and Virginia 1. Soldner Family Limited
Partnership LLLP
Stephanie Soldner
P.O. Box 90
Aspen, CO 81611
16
To the Trust: Aspen Valley Land Trust
320 Main Street, Suite 204
Carbondale, CO 81623
Phone: 970-963-8440
Fax: 970-963-8441
To Pitkin County: Pitkin County Attorney Office
530 E. Main Street, Suite 300
Aspen, CO 81611
Phone: 970-920-5193
john.ely@pitkincounty.com
18. RECORDATION
Co-Grantees shall record this Easement in the official records of Pitkin County, Colorado
and may re-record it at any time as may be required to preserve its rights in this Easement.
19. AMENDMENT
If circumstances arise under which an amendment to this Easement would be appropriate
to promote the Purposes of the Easement, Grantor and the Co-Grantees may jointly amend this
Easement, upon forty-five (45) day's prior written notice to and with the City County's prior
written approval, which approval shall be required for substantive,not corrective or technical
amendments, only. However, the Parties are under no obligation to amend this Easement, and
they may decline any amendment in their sole discretion. Any amendment shall be consistent
with the Purposes of the Easement, and may not affect the Easement's perpetual duration. Any
amendment shall be in writing, signed by all the Parties, and recorded in the records of the Clerk
and Recorder of Pitkin County, Colorado. Corrections to correct factual mistakes or typographical
or clerical errors may be made at the discretion of the Co-Grantees, with prior notice to Grantor
before recording.No amendment shall be allowed that affects the qualification of this Easement
or the status of the Trust and Co-Grantees under any applicable laws, including C.R.S. §§38-30.5-
101 et seq., or IRC §170(h), or § 501(c)(3), or any regulations promulgated thereunder. No
amendment shall be permitted that will confer impermissible private benefit to Grantor or to any
other individual or entity (see Treas. Reg. 1.170A-1 4(h)(3)(i)), or that will result in private
inurement to a board member, staff or contract employee of either Co-Grantee (see Treas. Reg.
1.501(c)(3)-1(c)(2)). Amendments may be subject to a fee to cover staff time, legal and other
costs.
20. SUBORDINATION
The Property is not subject to any mortgages or liens at the time of grant of this Easement, and
thus no subordination is necessary.No provisions of this Easement shall be construed as
impairing the ability of Grantor to use the Property as collateral for subsequent borrowing,
provided that anymortgage g or lien arising from such a borrowing shall be subordinate to this
Easement.
21. GENERAL PROVISIONS
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21.1. Definitions. For the purposes of this Easement,the following words and phrases
are defined as follows:
A. Grantor and Co-Grantees. The terms "Grantor" and "Co-Grantees," and any
pronouns used in place of those terms, refer to, respectively, Grantor and Grantor's
heirs,personal representatives, executors, administrators, successors and assigns, and
the Co-Grantees' and their successors and assigns;
B. Easement. The terms"Easement," "conservation easement,""Deed of
Conservation Easement," and"Deed of Conservation Easement in gross"refer to this
legal document and to the immediately vested interest in real property defined by
Colorado Revised Statutes §§38-30.5-101 et seq.;
C. Applicable Laws. The term"applicable laws"refers to all relevant federal, state,
and local statutes, ordinances,judicial decisions, executive orders, codes or
regulations having the force and effect of law that have bearing on or may control
certain uses allowed by the Easement;
21.2. Controlling Law. The interpretation and performance of this Easement shall be
governed by the laws of the State of Colorado;
21.3. Liberal Construction. This Easement shall be liberally construed in favor of the
grant to effect the Purposes of the 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
ensuring continuation of the Purposes of the Easement that would render the provision valid shall
be favored over any interpretation that would render it invalid. The common law rules of
construction and those disfavoring restrictions on the use of real property and construing
restrictions in favor of the free and unrestricted use of real property shall not apply to
interpretations of this Easement or to disputes between the Parties concerning the meaning of
particular provisions of this Easement;
21.4. Severability. If any provision or application of any provision of this Easement, is
found to be invalid,the remainder of the provisions shall be deemed severable and remain in full
force and effect;
21.5. Entire Agreement. This instrument sets forth the entire agreement between the
Parties with respect to the Easement and supersedes all prior discussions or agreements relating to
the Easement;
21.6. No Forfeiture.Nothing contained in this Easement will result in a forfeiture or
reversion of Grantor's title in any respect;
21.7. Joint and Several Obligation. The obligations imposed by this Easement upon
Grantor shall be joint and several in the event more than one entity or individual holds an interest
in the Property at any given time. If the Property's ownership, now or in the future, is by a single
18
entity consisting of multiple parties including shareholders, partners, or members,that entity is
required to notify its shareholders, partners, or members of the entity's and its parties' individual
rights and responsibilities, including monetary or other obligations set forth in this Easement;
21.8. Successors. The covenants, terms, conditions, and,restrictions of this Easement
shall be binding upon, and inure to the benefit of, the Parties hereto and Grantor's respective
personal representatives, heirs, successors, transferees, and assigns, and the Co-Grantees'
successors, transferees, and assigns, and shall continue as a servitude running in perpetuity with
the Property;
21.9. Termination of Rights and Obligations. A Party's rights and obligations under
this Easement terminate upon transfer of the Party's interest in the Easement or the Property,
except that liability for acts or omissions under the terms of the Easement occurring prior to
transfer shall survive transfer;
21.10. Captions. The captions in this instrument have been inserted solely for
convenience of reference and shall have no effect upon construction or interpretation;
21.11. Counterparts. The Parties may execute this instrument in two or more
counterparts, which shall, in the aggregate, be signed by all the Parties; each counterpart shall be
deemed an original instrument as against any Party who has signed it. In the event of any
disparity between the counterparts produced,the recorded counterpart shall be controlling;
21.12. Merger. Unless the Parties expressly state that they intend a merger of estates or
interests to occur, no merger shall be deemed to have occurred under any document executed in
the future affecting this Easement, and the Parties specifically agree that C.R.S. Section 38-30.5-
107 shall not apply to cause a merger of Easement into the underlying fee interest of the Property.
Nonetheless, if one or both Co-Grantees wish to acquire fee title to the Property or any additional
interest in the Property (such as a leasehold), Co-Grantees must first obtain the written approval
of City of Aspen. As a condition of such approval, the City may require that one or both of the
Co-Grantees first transfer the Easement to the other Co-Grantee or another qualified organization
consistent with Section 15 above;
21.13. Authority to Execute. Each Party represents that such Party has full power and
authority to execute and deliver this Deed of Conservation Easement; to perform its obligations
under this Easement; that the individual(s) executing this Easement on behalf of said Party is
fully empowered and legally authorized to do so; and that this Easement constitutes a valid,
enforceable, and legally binding obligation of said Party;
21.14. Third Party Beneficiaries and Enforcers. This Easement is entered into by and
between Grantor and Co-Grantees, and is solely for the benefit of the public, and Grantor and Co-
Grantees as Parties, and the City of Aspen as the sole third party beneficiary, for all purposes set
forth in this Easement and their respective successors and assigns. This Easement does not create
any rights or responsibilities,including enforcement or beneficial rights in any Parties or third
parties beyond Grantor, Co-Grantees, and the City of Aspen as set forth herein.
19
IN WITNESS WHEREOF, Grantor and the Co-Grantees have executed this Deed of
Conservation Easement in Gross as of the date first written above.
GRANTOR:
PAUL E. AND VIRGINIA I. SOLDNER FAMILY LIMITED PARTNERSHIP LLLP,
20
a Colorado limited liability company,
By:
STATE OF COLORADO )
ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this day of ,
2018, by Stephanie Soldner, , Paul E. and Virginia I. Soldner
Family Limited Partnership LLLP, a Colorado limited liability company, as Grantor.
WITNESS my hand and official seal.
[SEAL]
Notary Public
My commission expires:
CO-GRANTEE:
ASPEN VALLEY LAND TRUST,
a Colorado nonprofit corporation,
21
By:
Suzanne Stephens, Executive Director
STATE OF COLORADO )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
, 2018, by Suzanne Stephens as Executive Director of ASPEN
VALLEY LAND TRUST, a Colorado nonprofit corporation.
WITNESS my hand and official seal.
[SEAL]
Notary Public
My commission expires:
22
CO-GRANTEE:
BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, Colorado,
a body corporate and politic
By
Patti Clapper
Chair of the Board of County Commissioners
STATE OF COLORADO )
)ss.
COUNTY OF PITKIN )
The foregoing document was acknowledged before me this day of ,2018,by
Patti Clapper,as Chair of the Board of County Commissioners of Pitkin County, Colorado,
a body corporate and politic.
WITNESS my hand and official seal.
[SEAL]
Notary Public
My commission expires:
Approved as to Form: Manager Approval:
John Ely,Attorney Jon Peacock,County Manager
Recommended for Approval:
Dale Will,Acquisition Director,Open Space and Trails
23
EXHIBIT A
Legal Description of Property
LOT 2
A TRACT OF LAND SITUATED 97HN THE THE SOLDNER PARCEL'AS MW ON TFE 310 AMENDED
PLAT LOT 1, BURLINGAME RANCH MMSION. RECORDED N PLAT BOOK 75 AT PAGE 43 OF TLE
PITKN COUNTY RECORDS, ALSO SITUATED N THE NM/4SRFI/4 OF SECLRIN Z, MMINIP 10 SOIM
RANGE 85 NEST OF 1W 0 PMCIPAL MERIDIAN, PM N COUNTY. COLORADO. BEING MORE
PARTICULARLY DESMM AS FOLL.0W5:
BEGINNING AT A REBAR AND IEGMNLE PLASTIC CAP. AT THE EASTERLY LINE OF SAM) 'SfU.DNEIR
PARCEL'. WFICH SEARS S70'06'S4'E A DISTANCE OF 1182.12 FEET FROM 1K NEST ONE-QUARTER
CORNER OF SAID SECTKN 2;
THENCE ALONG THE BOUNDARY OF SAID 'SOLDNER PARCEL'.THE FOLLOW FIVE (5) COURSES:
1) N 0232'40' E A DISTANCE OF 165.48 FEET TO A REBAR AND ALUMINUM CAP. LS 0 27936;
2) N 0030'27" w A DISTANCE OF 234.64 FEET TO A REBAR AND ILLEGIBLE PLASTIC CAP,
3) S MINIM NI A DISTANCE OF 323.66 FEET TO A REBAR AND PLASTIC CAP, LS 0 20133
4) S 34W47- W A DISTANCE OF 120.81 FEET TO A REBAR AND ILLEGIBLE PLASTIC CAP;
5) S 1334'40'w A DISTANCE OF 223.13 FEET TO A REBAR AND ILLEGIBLE PLASTIC CAP.
THENCE S 9000'0(' E A DISTANCE OF 262.87 FEET TO A REBAR AND ILLEGIBLE PLASTIC CAP TO
THE EASTLRL.Y BOUNDARY OF SAID'SOI.MER PARCEL.';
THENCE ALOIN SAID BOUNDARY, THE FOLLORING FOUR (4)COURSES:
1) N 0019'27" E A DISTANCE OF 131.73 FEET TO A REBAR AND ILLEGIBLE PLASTIC CAP;
2) N 00'4153' N A DISTANCE OF 62.14 FEET TO A REBAR AND ILLEGIBLE PLASTIC CAP;
3) N 84'03'00"w A DISTANCE OF 6.15 FEET 11)A NO. 4 REBAR;
4) N 0232'40"E A DISTANCE OF 13.18 FEET(RECORD DISTANCE BEING 12.27 Ftp M TFE
POINT OF BEGINNING, SAID PARCEL.CONTAINING 2.051 ACRES, MORE OR LESS.
BASIS OF KAMM BEARINGS ARE RELATIVE TO A BEARING OF NW41'190E BETMBEN TFE M
1/4 CORNER AND TIE NORIHRUEST CORNER OF SAID SECTION 2 TOIW 10 SOUTH. RANGE 85
WEST OF 1HE 6TH P.M. 007H CORNERS BEING BRASS CAP MONUMENTS•FOUND IN PLACE.
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David A.COO W f
Colo.Ip.F.L,I.Nf 29W
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Wal of SW
w X"126.M
$oltBner a: 16 Slr. 1
A. Pcrcel Deacripiion
Sec2,T.10S,R.85 W AM.,.
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EXHIBIT B
24
EXHIBIT C
Baseline Documentation Acknowledgment
Grantor,Trust and Pitkin County acknowledge that each has read the "Soldner Baseline
Documentation Report," dated ,2018,and that the report accurately reflects the condition
of the Property subject to the Easement as of the date of conveyance of the Easement.
GRANTOR:
SOLDNER, LLLP
a Colorado limited liability partnership,
By:
CO-GRANTEE:
ASPEN VALLEY LAND TRUST,
a Colorado nonprofit corporation,
By:
Suzanne Stephens, Executive Director
CO-GRANTEE:
BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, Colorado,
a body corporate and politic
By
Patti Clapper
Chair of the Board of County Commissioners
26