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HomeMy WebLinkAboutresolution.council.042-11 RESOLUTION NO. 42/ SERIES OF 2011 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, CONSENTING TO A DEED OF CONSERVATION EASEMENT IN GROSS UPON THE DROSTE MOUNTAIN PARK PROPERTY • WHEREAS, the City of Aspen has established a Parks and Open Space program and is authorized to expend funds for the acquisition of open space lands; and • WHEREAS, Pitkin County, through the Pitkin County Open Space and Trails Program, secured a contract dated December 2, 2010, for the purchase of 845 -acres of land from the Droste Family, as further described in Exhibit A, for $17,000,000; and • WHEREAS, the Droste Property lies adjacent to or in close proximity of several other public open space lands, including Cozy Point Ranch, Cozy Point South, and Aspen Mass, which are owned by or otherwise protected by the City of Aspen; and • WHEREAS, the acquisition of the Droste property would complete an assemblage of open space properties and create a 2,500 acre "mountain park" between the City of Aspen and Town of Snowmass Village; and • WHEREAS, the Droste property possesses important trail connection opportunities which links Aspen's Trail System to Snowmass Village and Pitkin County trails, and provides much needed trail opportunities for equestrians at Cozy Point Ranch; and • WHEREAS, the Droste property provides significant wildlife values, including critical habitat and migration corridor for the Maroon Bells elk herd; and • WHEREAS, the ridgeline of the Droste property can be viewed from locations in Aspen and is an important component of the scenic landscape for the entrance to Aspen and Snowmass; and • WHEREAS, on July 6, 2010, the City of Aspen Open Space Advisory Board recommended the expenditure of $1,000,000 towards the purchase of the Droste property, to be matched by contributions from Pitkin County, the Town of Snowmass Village, the Great Outdoors Colorado program, and private citizens; and 1 • WHEREAS, at the regular meeting on November 22, 2010, the Aspen City Council accepted this recommendation and budgeted $1,000,000 for the Droste property acquisition constituting approximately 5.9% ownership of the property; and • WHEREAS, on December 30, 2010, Pitkin County closed on its purchase contract for the Droste property and took possession of the property on behalf of the people of Pitkin County; and • WHERAS, the Droste property possesses natural, scenic, open space (including agricultural), wildlife, historical, educational and recreational values of importance to the people of Pitkin County, the City of Aspen, and the State of Colorado that are worthy of preservation; and • WHEREAS, the Droste property can best be protected by placing a conservation easement upon it to ensure that it will be made widely available to the general public for non - motorized seasonal recreational use along designated trails and potentially for occasional educational programs for the benefit of the public; and • WHEREAS, the Board of County Commissioners of Pitkin Count and the Town of Snowmass Village have agreed to protect the Droste property by placing a conservation easement upon it and the City Council desires to consent to the terms of said conservation easement as set forth in that certain Amended and Restated Deed of Conservation Easement in Gross naming the Aspen Valley Land Trust as the Grantee of said consecration easement. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, that The Mayor of the City of Aspen City is hereby authorized to execute, on behalf of the City of Aspen, that certain Amended and Restated Deed of Conservation Easement in Gross appended hereto as Exhibit A. !� Dated: D , 21 Michael C. Ireland, Mayor (.lent Jed ‘so-, tlis erg Ter. 2 I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held o2 , 2011. Kathryn S. /h, Ci Clerk Amended and Restated Deed of Conservation Easement in Gross, appended herto as Exhibit A. 3 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 1 OF 49, R $0.00 Janice K. Vos Caudill, Pitkin County, CO 4pn &cBd by Oid /num }td. 3 3 — '� G/ 0 Return to: Aspen Valley Land Trust 320 Main Street, Suite 204 Carbondale, CO 81623 970 - 963 -8440 AMENDED AND RESTATED DEED OF CONSERVATION EASEMENT IN GROSS WAPITI RIDGE Piikin County NOTICE: THIS PROPERTY HAS BEEN ACQUIRED IN PART WITH GRANT 011006 ("GRANT") FROM THE STATE BOARD OF THE GREAT OUTDOORS COLORADO TRUST FUND ("BOARD"). THIS DEED OF CONSERVATION EASEMENT CONTAINS RESTRICTIONS ON THE USE AND DEVELOPMENT OF THE PROPERTY WHICH ARE INTENDED TO PROTECT ITS OPEN SPACE AND OTHER CONSERVATION VALUES. THE BOARD HAS FOUND THAT THIS DEED OF CONSERVATION EASEMENT PROVIDES BENEFITS THAT ARE IN THE PUBLIC INTEREST. THIS AMENDED AND RESTATED DEED OF CONSERVATION EASEMENT IN GROSS ( "Easement ") is granted this 7,f day of July, 2011, by the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, a body corporate and politic ( "Grantor" or the "County ") 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 "). The Grantor and the Trust are collectively referred to as the "Parties "). The TOWN OF SNOWMASS VILLAGE, COLORADO, a Colorado Horne Rule Municipality (the "Town ") has executed this Easement for the purpose of (1) consenting to the terms of this Easement; and (2) quitclaiming to the Trust its interest as a grantee under the 1999 Conservation Easement, described below, while retaining rights of enforcement as described in Section 13, herein. The following exhibits are attached hereto and incorporated by reference herein: Exhibit A: Legal Description of Property Exhibit B: Legal Description of County Tract and Tract A Exhibit C: Map of Conservation Easement Exhibit D: Water Rights Exhibit E: Baseline Documentation Acknowledgement • Exhibit F: Consents of 1999 Conservation Easement parties to this Easement Vra07isu 1 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 2 OF 49, Janice K. Vos Caudill, Pitkin County, CO RECITALS I. The Property (County Tract. Tract A and South Tract). WHEREAS, Grantor is the sole owner in fee simple of approximately 844.69 acres, more or Tess, of real property in the Brush Creek area of Pitkin County, State of Colorado, known as "Wapiti Ridge" and more particularly described in Exhibit A, together with certain Water Rights described in Exhibit D (the "Property"). The Property includes the 438 -acre, more or less, "County Tract" (previously encumbered by the 1999 Conservation Easement, described below), the 99 -acre, more or Tess "Tract A" described in Exhibit B (previously encumbered by the 1996 -7 Conservation Easement described below) and the 308 -acre, more or less, remainder of the Property (the "South Tract ") (not previously encumbered by a conservation easement). The term "Property" shall hereinafter be defined as the land and water rights combined, and the term "Water Rights" shall refer to the water rights alone and include all of Grantor's water rights, title and interest described in Exhibit D. This Easement is an amended and restated conservation easement as to the County Tract and as to Tract A, and is a new conservation easement as to the remainder of the Property; WHEREAS, the Grantor acquired the Property in part with funds contributed by the Town and the City of Aspen, Colorado, a Colorado municipal corporation (the "City"), for the purpose of protecting certain ecological, open space, agricultural and recreational values important to the residents and visitors of the Town, the City and Pitkin County; II. The County Tract and 1999 Conservation Easement. WHEREAS, the County and the Town were the co- grantees of a Deed of Conservation Easement encumbering 503 acres, more or less, of land and certain water rights, granted by Peter C. Droste et at, and recorded in the real property records of Pitkin County on December 1, 1999 as Reception No. 438191 ( "1999 Conservation Easement "); WHEREAS, approximately 438 acres encumbered by the 1999 Conservation Easement was conveyed to the County by Warranty Deed (the "County Deed ") recorded in the real property records of Pitkin County on December 30, 2010 as Reception No. 576407 (described in Exhibit B as the "County Tract "), which County Tract is part of the Property encumbered by this Easement; WHEREAS, as evidenced by the consent agreements recorded immediately prior to this Easement (the "Consents ") copies of which are attached hereto as Exhibit F, the parties to the 1999 Conservation Easement have agreed that upon the recording of this Amended and Restated Deed of Conservation Easement the County Tract is released from the 1999 Conservation Easement for the purpose of (1) allowing the County Tract to be joined together with the remainder of the Property in this Amended and Restated Conservation Easement having terms and provisions appropriate for protected land allowing public access for low impact recreational uses; (2) conveying to the Trust any interest of the County and the Town as co- grantees under the 1999 Conservation Easement; and (3) allowing the remainder of the property encumbered by v7a 071811 2 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 3 OF 49, Janice K. Vos Caudill, Pitkin County, CO the 1999 Conservation Easement (the "Droste Tract," referred to in Exhibit F, which is in private ownership as of the date of recording this Easement) to continue to be subject to the 1999 Conservation Easement which does not require public access; WHEREAS, by its execution of this Easement, the Town hereby quitclaims its interest as a co- grantee under the 1999 Conservation Easement to the Trust, while retaining certain rights of enforcement as described in Section 14, herein; WHEREAS, by its execution of this Easement, the County hereby quitclaims to the Trust any interest it may have as a co- grantee under the 1999 Conservation Easement while retaining its interest as Grantor hereunder; WHEREAS, by its execution of' this Easement the Trust accepts (1) the quitclaim of any interest of the Town as co- grantee under the 1999 Conservation Easement; (2) the quitclaim of the County as to any interest it may have as co- grantee under the 1999 Conservation Easement; and (3) the terms, provisions and obligations of this Easement pursuant to which the Trust is the sole grantee; WHEREAS, the Parties and the Town wish to restate, merge, supersede and replace the 1999 Conservation Easement as it affects the County Tract (but not interrupt the perpetual duration of the 1999 Conservation Easement or the property right which vested in the grantees at the recording of the 1999 Conservation Easement), with this Easement. 111. Tract A and the 1996 -7 Conservation Easement. WHEREAS, Peter C. Droste et al., granted a Deed of Conservation Easement to Pitkin County encumbering 99 acres, more or less, located in Pitkin County, Colorado (referred to as "Tract A "), which was recorded in the real property records of Pitkin County on March 22, 1996 at Reception No. 391098 and re- recorded on November 11, 1997 as Reception No. 410437 ("1996-7 Conservation Easement "). Tract A was conveyed to Pitkin County by the County Deed recorded on December 30, 2010, and upon recording of the County Deed Pitkin County became both the owner of the Tract A and the holder of the 1996 -7 Conservation Easement. Pitkin County intends to restate, merge, supersede and replace the 1996 -7 Conservation Easement with this Easement (but not interrupt the perpetual duration of the 1996 -7 Conservation Easement or the property right which vested in the grantee at the recording of the 1996 -7 Conservation Easement). IV. Additional Recitals Pertaining to the Entire Property. WHEREAS, the Property possesses natural, scenic, open space (including agricultural), wildlife, historical, educational and recreational 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 v7a 071811 3 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 4 OF 49, Janice K. Vos Caudill, Pitkin County, CO conservation purposes, the protection of which are recognized for qualified conservation 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's location and diversity of vegetation, topography and structure provide habitat for a diverse array of plants and animals, making the Property an important natural resource unique to the area and critical to maintaining the landscape and habitat connectivity of the region. The Property includes a portion of Brush Creek and its associated riparian wetland complex with a rich variety of emergent and shrub -scrub wetlands, beaver ponds, and seeps and springs, which collectively support a diverse ecological community. The Property's prominent ridgeline and upland hillsides support a mosaic of plant communities in good to excellent condition dominated by a variety of mixed montane shrublands with Gambel oak, Saskatoon serviceberry, mountain snowberry, and mountain mahogany. Other vegetative communities occurring on the Property include quaking aspen woodland, Rocky Mountain juniper - Gambel oak, as well as a few patches of Douglas-fir / Rocky Mountain juniper woodland. Bare shale soils on the Property provide habitat for some rare and endemic plant species including Rollins' twinpod (Physaria rollinsii), a rare plant endemic to Colorado, which has been ranked by the Colorado Natural Heritage Program ( "CNHP ") as S2 /G2, imperiled in the state due to its rarity. Another endemic plant, Harrington's beardtongue (Penstemon harringlonii) also likely occurs on the Property and is globally vulnerable, endemic to a six county area in Colorado. Finally, the Property supports sagebrush shrublands and Gambel oak shrublands designated as rare and/or imperiled by CNHP. The Property provides a critically important migration corridor for the Maroon Bells- Snowmass elk herd, and its southeast facing slopes and bare shale ridge top provide valuable winter range, a winter concentration area, and severe winter range for elk. Elk are common on the Property from late fall through early spring with densities greatest during fall and spring migration. Mule deer also use the Property throughout the year but most heavily during the spring and fall transition periods. In addition, 56 species of birds, 29 species of mammals, seven bat species, and five species of herpetofauna are known or suspected to occur on the Property. Species of concern occurring on the Property include Brewer's sparrows, northern pygmy owl, and Virginia's warbler. • 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 is pursuant to a clearly delineated federal, state or local governmental conservation policy and will yield a significant public benefit. o Scenic Enjoyment. The Property contains a prominent ridgeline as well as scenic pastures and meadows all visible from heavily traveled public roads that add to the scenic, natural and rural character of the landscape in which it lies. Specifically, the Property is visible from Colorado State Highway 82, Brush Creek Road, Owl Creek Road, points on McLain Flats Road, Snowmass Ski Area, and public trails including the popular Owl Creek and Brush Creek Trails, in v7a 071811 4 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 5 OF 49, Janice K. Vos Caudill, Pitkin County, CO addition to other high points on nearby public lands, all of which are open to and actively used by residents of Pitkin County and the State of Colorado. In addition, the Property will be seasonally accessible to the public by trail and provides outstanding views of surrounding mountain ranges and valleys from its ridges. The terms of the Easement do not permit a degree of intrusion or future development that would interfere with the essential scenic quality of the land. o Agriculture. The Property has historically been used for agricultural production including livestock grazing, irrigation and hay production. These uses are representative of the historic uses of the area and are compatible with other land use in the vicinity. o Governmental Policies. Conservation of the Property is promoted by the following local, state, and federal governmental policies and the goals and policies of Pitkin County. The laws and regulations of the State of Colorado and the United States also support conservation of the Property relative to its scenic, wildlife habitat, agricultural heritage, natural area and recreational values: • Local Policies: Pitkin County Land Use Code includes policies that value and protect Rural Development, Recreation, Wildlife and Scenic Quality, and the adoption of the Ecological Bill of Rights. The Brush Creek Master Plan and Owl Creek Master Plan both encourage "conservation easements in the area to maintain and provide continuity between habitat in the wildlife corridors and critical winter habitat in the Brush Creek, Owl Creek, Wildcat Ranch and Williams Hill areas ". The Snowmass Village Comprehensive Plans acknowledges that the "main entrance into Snowmass Village and is a critically important scenic resource to the Town. Lower Brush Creek provides the first significant view of the Village's ranching heritage. [t]he open character of undeveloped lands emphasizes Snowmass Village as a separate community, distinct from other communities in the Roaring Fork Valley. The Lower Brush Creek Valley is a picturesque, high - quality visual and wildlife resource. Preserving the area's open character is a priority in the Lower Brush Creek Valley ". • Statewide Policies: The State of Colorado has recognized the importance of private efforts toward the preservation of land by the enactment of Colorado Revised Statutes ( "C.R.S. ") § §38- 30.5 -101 el seq. In addition, C.R.S. §33 -I -101 provides in relevant part that "it is the policy of the state of Colorado that the wildlife and their environment are to be protected, preserved, enhanced, and managed for the use, benefit, and enjoyment of the people of this state and its visitors." C.R.S. §38- 30.5 -102 provides for the creation of conservation v7a 071811 5 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 6 OF 49, Janice K. Vos Caudill, Pitkin County, CO easements to maintain land "in a natural, scenic, or open condition, or for wildlife habitat, or for agricultural, horticultural, wetlands, recreational, forest or other use or condition consistent with the protection of open land ..." The State of Colorado also has provided incentive for Colorado landowners to protect their land with conservation easements created pursuant to C.R.S. § §38- 30.5 -101 et seq. and § 170(h) of the IRC with the enactment of the Conservation Easement Credit Against Income Taxes, C.R.S. §39 -22 -522, which provides a transferable tax credit for qualifying grants of conservation easements in gross. The Colorado Department of Agriculture Statutes, C.R.S. § §35 -1 -10I et seq., provide in part that "it is the declared policy of the State of Colorado to conserve, protect, and encourage the development and improvement of its agricultural land for the production of food and other agricultural products." The Property contains significant sagebrush habitat and its conservation is therefore promoted by the Colorado Division of Wildlife, which lists sagebrush as a Key Habitat and Priority Action Area in its 2006 Comprehensive Wildlife Conservation Strategy and Wildlife Action Plans. The voters of the State of Colorado by adoption of Article XXVII to the Constitution of the State of Colorado, the legislature of the State of Colorado by adoption of enabling legislation, and the Board, by adopting and administering competitive grants application and rigorous due diligence review processes, have established that it is the policy of the State of Colorado and its people to preserve, protect, enhance and manage the state's wildlife, park, river, trail and open space heritage, to protect critical wildlife habitats through the acquisition of lands, leases or easements, and to acquire and manage unique open space and natural areas of statewide significance. o Significant Public Benefit. The Property is located in a rural, agricultural, mountainous area of Pitkin County, where there has been a trend of intense development in the vicinity of the Property. The Property provides a buffer between the City of Aspen, one air mile to the southeast, and the Town of Snowmass Village, immediately to the south, along Highway 82, the main, heavily travelled route to Aspen, and along Owl Creek Road, a scenic secondary route from Aspen to Snowmass Village. Given the Property's native habitat features and value as an elk migration corridor and critical open space, any development of the Property would contribute to fragmentation and loss of habitat and potentially to the degradation of the scenic and natural character of the area. This Easement will provide the general public an opportunity to enjoy recreational access to the Property, and to continue to enjoy its scenic views from major travel corridors. v7a 071811 6 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 7 OF 49, Janice K. Vos Caudill, Pitkin County, CO In addition, conservation of the Property will increase the amount of conserved land in the Brush Creek Area, an area currently identified by the Trust, the City of Aspen, the Town of Snowmass Village and Pitkin County as a high priority for protection. The Property is adjacent to over 1,660 acres of conserved land on the Seven Star Open Space properties, Cozy Point South, Cozy Point Ranch, Hidden Valley, and North Mesa conserved public lands and Seven Star and Brush Creek Ranch Lot 10 conservation easements. • Recreation or Education [§ 1.170A- I4(d)(2)]. The Property will be made widely available to the general public for non- motorized seasonal recreational use along designated trails and potentially for occasional educational programs for the benefit of the public. Anticipated trails will enhance the existing recreational trail networks of Pitkin County, the City of Aspen, and the Town of Snowmass Village by providing links between these trail networks. Recreational opportunities on the Property will also include much needed equestrian trails for public use accessible from nearby equestrian facilities. WHEREAS, Grantor recognizes that the conservation goals accomplished by Grantor's acquisition of' the Property and protected through this Easement were advanced by prior significant contributions made by the Town of Snowmass Village and Pitkin County in the purchase of the 1996 -7 Conservation Easement and the 1999 Conservation Easement; WHEREAS, Grantor intends to convey to the Trust the right to preserve and protect the Conservation Values in perpetuity and the Trust agrees by accepting this grant to honor the intentions of Grantor stated herein and to preserve and protect in perpetuity the Conservation Values; WHEREAS, the Trust is a charitable organization as described in IRC §501(c)(3), and is a publicly - supported organization as described in IRC §170(b)(1)(A) whose primary purpose is to permanently preserve and protect the natural, scenic, agricultural, historical, and open space resources of the greater Roaring Fork and Colorado River Valleys, and who is a "qualified organization" to do so within the meaning of IRC §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 -720, and in Rule A -1 of the Code of Colorado Regulations, Qualifications for Certification to Hold Conservation Easements, (4 CCR 725 -4, Rule A -1), for the current term extending from January 1, 2011 to December 31, 2011. Additionally, the Trust is accredited by the Land Trust Accreditation Commission at this time; and WHEREAS, the Board of Directors of the Trust has duly authorized the Trust's Executive Director or her designee to execute and accept conservation easements on behalf of the Trust. v7a 071811 7 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 8 OF 49, Janice K. Vos Caudill, Pitkin County, CO 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 is hereby acknowledged, the Parties agree as follows: 1. GRANT - Grantor hereby voluntarily and irrevocably grants and conveys to the Trust this perpetual Conservation Easement in gross ( "Easement ") over and across the Property pursuant to C.R.S. § §38- 30.5 -101 el seq., through the terms mutually agreed to in this Easement, and to hold said Easement unto the Trust and its successors and assigns forever. Grantor agrees that the donation of the Easement gives rise to a property right, immediately vested in the Trust, 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 el 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, including agricultural and limited public recreational use, 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 (collectively, the "Purposes "). 3. INTENT Subject to the express prohibitions described herein, 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 Trust in its reasonable discretion as described more specifically in Section 12. Nothing in this Easement is intended to compel a specific use of the Property other than the preservation and protection of the Conservation Values. 4. BASELINE DOCUMENTATION The Parties acknowledge that a Baseline Documentation Report of the Conservation Values and relevant features of the Property was prepared on June 10, 2011 by Colorado Wildlife Science, LLC, a company familiar with conservation easements, the Property, and the environs, which documents the Property's condition as of the conveyance date of this easement ( "Baseline Report "). A copy of the Baseline Report shall be kept on file with both Parties and by this reference made a part hereof. The Parties acknowledge that the Baseline Report is intended to establish the condition of the Property as of the conveyance date of this Easement, and both Parties have acknowledged the same in a signed statement, a copy of which is attached hereto as Exhibit E. The Parties further agree that the existence of the Baseline Report shall in v7a 071811 8 RECEPTION#: 581345, 07/20/2011 at 01:20:06 PM, 9 OF 49, Janice K. Vos Caudill, Pitkin County, CO no way limit the Parties' ability to use other pertinent information in resolving any controversy that may arise with respect to the condition of the Property as of the conveyance date of this Easement. 5. MANAGEMENT PLAN Grantor shall work with the City and the Town to prepare a management plan for the Property, which shall set forth management objectives and a comprehensive and detailed plan for the long- term management of Property in support of the Purposes of this Easement and subject to the terms of this Easement, including development and management of limited recreational resources for the public, management of agricultural operations, and protection and management of natural resources, including but limited to riparian areas and big game migration corridors and winter range ( "Management Plan "). The Management Plan shall be prepared by qualified individuals and then reviewed and approved by the Trust as being consistent with the provisions of this Easement prior to its formal adoption on or around December 2011. A copy of the Management Plan shall be kept on file at the offices of the Trust, and shall be provided to the City, the Town and the Board. The Management Plan may be periodically amended or updated as agreed to among the Trust, the County, the Town and the City. The Management Plan may be periodically amended or updated as agreed to among the Trust, the County, the Town and the City. The Trust's approval of the Management Plan, and any amendments or updates thereto, shall be granted or withheld based upon the consistency with the Purposes and terms of this Easement, and with the terms of any grant agreements by which funds to purchase this Easement were secured, as determined in the reasonable discretion of the Trust. If Grantor disagrees with the Trust's determination, it may appeal through the mediation process described in 13.1 herein, or using other remedies, providing however that such appeal shall be limited solely to and shall address only the merits of the Plan's consistency with Purpose and terms of the Easement and grant agreements. Grantor agrees to abide by the terms of the Management Plan and to enforce the provisions of the Management Plan against third parties. 6. RIGHTS OF THE TRUST To fulfill the Purposes of this Easement, Grantor hereby conveys to the Trust a property right in the form of this Easement, which immediately vests with the Trust (as stipulated agreed in Section 1 and in Section 15.3 herein), consisting of the following affirmative rights: 6.1. All development rights deriving from the Property in any way ( "Trust's Development Rights "), except those expressly reserved by Grantor in Section 8 of this Easement. The Parties agree that Trust's Development Rights shall be held by the Trust 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; 6.2. The right to preserve and protect the Conservation Values in perpetuity; 6.3. The right to enter upon the Property at least annually at reasonable times agreed to mutually by Grantor and the Trust to inspect the Property thoroughly, to monitor v7a 071811 9 RECEPTION*: 581345, 07/20/2011 at 01:20:06 PM, 10 OF 49, Janice K. Vos Caudill, Pitkin County, CO 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 Trust reasonably believes that immediate entry upon the Property is essential to prevent or mitigate a violation of the Easement; 6.4. The right 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 14.5 herein; 6.5. The right to receive notification from and join Grantor as a party to any condemnation or eminent domain proceedings affecting the Property (as described in Section 15), or to any leases, surface use agreements, damage agreements or rights -of- way that may be proposed, granted or required hereafter as a result of mineral development affecting the Property (as described in Section 8.2.G); and 6.6. Any other rights that the Parties may approve consistent with the Purposes of the Easement, including adding additional purposes or defining additional Conservation Values. • 7. RIGHTS OF GRANTOR Except as limited by this Easement, 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. 8. PROHIBITED AND PERMITTED USES The following uses and practices by Grantor, though not an exhaustive recital, are either prohibited or permitted by this Easement. Certain of these uses, where indicated, require notice to or approval from the Trust, or both, according to Sections 11 and 12. Trust's prior notice and approval is required for uses not expressly described herein when there is a question as to consistency with the Purposes of this Easement. 8.1. Buildings and Improvements. The construction or placement of any improvements (defined as permanent or temporary buildings, structures, mobile homes or other physical, human- introduced development of or on the Property, including landscaping, fences, roads, septic systems, utilities, etc.) is prohibited on the Property, except as follows: v7a 071811 10 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 11 OF 49, Janice K. Vos Caudill, Pitkin County, CO A. Agricultural Structures. Grantor retains the right to construct, replace, enlarge, relocate and maintain minor structures (as defined below) for agricultural purposes (such as hay sheds, loafing sheds or water tanks) not to exceed a total covered ground area of 6,000 square feet and in a location approved by the Trust. Minor structures are defined as being unenclosed (i.e., possessing three or fewer walls), and not having excavated, raised or slab foundations. No covered agricultural structures shall be constructed in the wetlands, riparian areas, or upland hills of the Property, the preservation of which is important to achieve the Purpose of this Easement; B. Recreational Structures. Low - impact (as defined in Section 22.1 herein) structures, including benches, picnic tables, open -sided shade or rain shelters, public restrooms or port-a -pots, and interpretive signage for public use, enjoyment or education are permitted on the Property in a location and manner consistent with the Purposes of the Easement (i.e., at least 100 feet from riparian areas or wetlands and not on ridgelines visible from public rights -of -way); C. Fencing. Grantor may maintain, repair, and replace existing fences and erect new fences on the Property, provided such new or replaced fencing is consistent with then - current Colorado Division of Wildlife ( "CDOW ") guidelines for fencing in a wildlife migration area so as to permit the movement of wildlife across the Property, and is consistent with the Purposes of this Easement. Grantor reserves the right to construct, expand, repair, replace, and maintain temporary or permanent corrals, livestock holding pens and other enclosures for permitted agricultural uses that do not meet the above CDOW guidelines, provided all such enclosures do not exceed a total ground disturbance footprint of two (2) acres and are located in the existing pasture areas of the Property. Privacy fencing and the planting of trees or other vegetation along Property boundaries in a manner that detrimentally affects the general public's visual access to and across the Property is prohibited; D. Roads. Grantor may maintain, grade and gravel existing ranch and access roads and construct one new access road as shown on Exhibit C or in an altemate location mutually agreed on by the Parties, provided such roads are not widened or surfaced with impermeable materials. No roads shall be through -roads or open to the public for motorized recreation or transport. The construction of or granting of easements or rights -of -way for additional new roads is prohibited; E. Trails. Grantor reserves the right to develop natural - surfaced recreational trails not to exceed 10 feet in width for non - motorized public use, which use Grantor may restrict as provided in Section 9. Grantor also reserves the right to replace, repair, maintain, improve, widen or relocate the existing paved Brush Creek Trail; vie 071811 1 1 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 12 OF 49, Janice K. Vos Caudill, Pitkin County, CO F. Utilities, Irrigation Structures, and Other Technology. The installation of, or granting of easements and rights -of -way for utilities and related infrastructure is prohibited, except as permitted by easements or rights -of -way existing at the time of this grant, or as follows: a. Buried utility lines and pipelines may be located within existing pasture areas or along roadways; b. The installation, maintenance and improvement of stock ponds and irrigation ditches, pipelines, structures and related equipment for agricultural purposes or the enhancement of wildlife habitat is permitted in compliance with all applicable regulations, and in accordance with Section 8.2.14, Water Resources, and 8.2.1, Water Rights. Construction of ponds or water features for other purposes requires prior approval of the Trust. Soil, sand, rock and gravel produced during the excavation or construction of permitted ditches or ponds may be used or relocated on the Property in a manner consistent with the Purposes of this Easement; c. Low - impact (as defined in Section 22.1) wind, solar and micro -hydro powered generators are permitted in connection with approved uses of the. The construction of commercial wind, solar and other energy generation facilities is prohibited (including commercial wind farms). Grantor shall promptly reseed and restore any surface impacts that result from the installation or maintenance of any above - described improvements to as close to the Property's original condition as possible within three months, season permitting, or as otherwise approved by the Trust. 8.2. Resource Management. 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 the relatively natural habitat for native plants, wildlife, or ecosystems on the Property, except: (a) as necessary in emergencies; (b) as required by permitting agencies for habitat enhancement or restoration purposes; (c) as necessary for improvements described in Section 8.1 above; or (d) as necessary for the following uses: A. Agriculture. Grantor retains the right to conduct agricultural operations on the Property, and to lease lands with appurtenant Water Rights for agriculture, in a manner consistent with sound farming and range management practices so as not to cause significant soil erosion or low soil quality as then - determined by the Natural Resources Conservation Service or its successor organization ( "NRCS "). Permitted agricultural operations include grazing and raising of horses and livestock, maintenance of existing pasturelands, cultivation and raising of crops, and all other agricultural activities not inconsistent with protection of the long -term ecological viability of the land. v7a 071K11 12 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 13 OF 49, Janice K. Vos Caudill, Pitkin County, CO The following agricultural practices are considered inconsistent with the Purposes of this Easement, and are therefore prohibited on the Property: (1) commercial feed lots, defined as confined areas or facilities within which the Property is not grazed or cropped annually for purposes of extended feeding and finishing of large numbers of livestock for commercial reception and feeding of livestock, and other intensive growth livestock farms, such as dairy, swine, or poultry farms; (2) clearing or conversion of native rangeland or habitat to create new pastures; (3) Tree farms, sod farms, nurseries, fish hatcheries or aquaculture; (4) Commercial equestrian boarding. If agricultural operations on the Property cease in the future, Grantor agrees to reseed heavily disturbed areas and take other measures necessary to establish native or non - invasive ground cover to prevent the spread of noxious weeds. The Parties agree that agricultural operations may resume at any time thereafter; B. Vehicle Use. On and off -road use of motor vehicles is permitted as necessary for property maintenance, agriculture and range management in a manner that does not result in erosion, harassment of wildlife, or damage to the natural ecosystems or scenic values of the Property. Recreational or public use of motor vehicles is prohibited on the Property. Off road vehicle courses for snowmobiles, all- terrain vehicles, motorcycles, or other motorized vehicles are prohibited; C. Hunting and Fishing. Hunting, fishing and the leasing of hunting rights on the Property may be permitted or prohibited at Grantor's discretion and according to Colorado Division of Wildlife and other applicable regulations; D. Trash. 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, and except in established trash receptacles for waste disposal associated with public recreational visits; E. Forest and Vegetation Management. Selective cutting, thinning (see definitions in Section 22.1) and burning of trees and vegetation on the Property is permitted to control fire danger, insects, disease and weeds; to prevent personal injury and property damage; for construction of permitted fences, trails, roads or structures; or to maintain the health of the wildlife habitat or ecosystem. Clear cutting or any management activities performed for commercial purposes, or with the potential to damage riparian areas, contribute to erosion, or negatively impact the scenic of wildlife Conservation Values of the Property are prohibited. The Trust may require that any such activities follow the Management Plan, or if not addressed specifically in the Management Plan, by a supplemental plan prepared by a qualified expert satisfactory to the Trust. F. Weed Control. Grantor agrees to control noxious weeds and invasive plant species on the Property in accordance with the Colorado Noxious Weed Act, C.R.S. v7a 071811 13 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 14 OF 49, Janice K. Vos Caudill, Pitkin County, CO §§ 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; G. Minerals. In accordance with IRC §170(h) and §1.170A -14(g) of the Treasury Regulations, exploration for, extraction or removal of any mineral resource (which may include, but is not limited to, sand, gravel, rock, soil, peat, coal, uranium, oil, oil shale, natural gas or other hydrocarbons) by any surface mining method or any other method in a manner inconsistent with the Purposes of this Easement is prohibited. Because Grantor does not own the mineral rights associated with the Property, a mineral remoteness letter, on file with the Trust, was prepared by Rare Earth Science, LLC on January 26, 2011 finding that the likelihood of surface mining on the Property is so remote as to be negligible, in compliance with IRC § 170(h) and Treas. Reg. §1.170A- 14(g). In order to satisfy the intent of this paragraph, any future mineral development on the Property shall occur as follows: a Trust's Participation in Future Mineral Agreements. Grantor shall notice the Trust prior to entering into any mineral leases, surface use agreements, non surface use agreements, damage agreements, rights -of -way or other easements (collectively "mineral agreements ") related to mineral development on the Property that may be required by a third party interest - holder in mineral rights underlying the Property. The Trust shall have the same legal rights as Grantor to review and participate in negotiations for proposed mineral agreements in order to direct the development of mineral resources to occur by those methods having no more than limited, localized, temporary and reclaimable impacts on the Property, which impacts must not be irremediably destructive of the Conservation Values (in accordance with IRC § 170(h) and Treas. Reg. § 1.170A- 14(g)). The Trust's participation is not intended to deny any third party's ultimate right to develop minerals underlying the Property, and the Trust shall claim no rights to proceeds or royalties from such development. Grantor shall retain sole execution authority for all mineral agreements. Any mineral agreements entered into after this date shall, at a minimum, include the following: 1) Reference to this Easement and summary of the Conservation Values; 2) Acknowledgement that the agreement is subordinate and subject to the terms of this Easement to the degree legally possible; 3) Only the minimum structures, infrastructure, and other disturbance or impacts to the Property shall be permitted as reasonably necessary to mineral development; non - surface occupancy methods of mineral development are preferred; 4) All impacted sites associated with mineral development shall be recontoured and revegetated, and any damage to the Property or its Conservation Values restored, to as close to the Property's original state as possible upon completion of active drilling or mineral development v7a 071811 14 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 15 OF 49, Janice K. Vos Caudill, Pitkin County, CO operations; any structures required to remain upon the Property for more than one year shall be concealed from public view and constructed and maintained in a manner not damaging to the Conservation Values. b. Current Oil and Gas Leases. There are no oil and gas or other mineral leases on or affecting the Property at this time. H. Water Resources. Grantor shall not, divert, dam, pollute, drain, dredge, or otherwise alter Brush Creek or other naturally- occurring streams, springs, lakes, ponds, designated wetlands or other surface or subsurface water features on the Property in a manner that degrades or destabilizes their natural banks or shorelines. Grantor may expand or create wetlands along Brush Creek in accordance with all applicable regulations and the following paragraph, or construct and maintain ponds and irrigation infrastructure in accordance with Section 8.1.F(b). I. Water Rights. The following water rights are included with this grant and burdened by this encumbrance: a Water Rights Included. Grantor agrees to include all water rights beneficially used on the Property in this Easement pursuant to C.R.S. §38- 30.5 -102 (the "Water Rights "). The Water Rights consist of' all of Grantor's rights, title, and interests in and to the water and water rights described in Exhibit D, together with all associated canals, ditches, laterals, head gates, springs, wells, ponds, reservoirs, water shares and stock certificates, water allotments, contracts, units, permits, easements and rights of way, and irrigation equipment; b. Permitted Water Uses. Grantor shall have the right to continue recent historic use of the Water Rights on the Property for irrigation, agricultural purposes, and protection and preservation of the Conservation Values; c. Restrictions on Water Rights. The Water Rights may not: (I) be changed to or used for municipal, industrial, or commercial uses or any other new uses; (2) be changed for use other than on the Property; (3) be sold or legally separated from the Property; or (4) be changed via a change in point of diversion, quantity, or type or place of use, except upon receipt of the Trust's written determination that such changes are consistent with the Purposes of this Easement; d. Protection of Water Rights. if Grantor fails to continue the recent historical use of the Water Rights on the Property in such a way that the Water Rights should become subject to a threat of abandonment, by action or inaction, Grantor shall provide the Trust a copy of any written notice received from any state water official concerning the use, or possible abandonment, of the Water Rights. If the Trust discovers that the Water Rights are subject to a threat of abandonment, the Trust shall give Grantor written notice of such threat. If, and only if, Grantor fails to cure the threat of abandonment within 90 days of receiving such notice from v7a 071811 15 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 16 OF 49, Janice K. Vos Caudill, Pitkin County, CO the Trust or state, the Trust shall, in addition to any other remedies available to the Trust under this Easement or law, have the right, but not the obligation, to: (1) enter upon the Property and undertake any and all actions reasonably necessary to continue the historical use of the Water Rights; (2) seek removal of the Water Rights from the decennial abandonment list; (3) seek to change the Water Rights to another use consistent with the Purposes of this Easement; and (4) sell, lease or otherwise convey all or part of such Water Rights to the Colorado Water Conservation Board or other then - qualified entity for the specific conservation purpose of protecting or enhancing instream flows or water levels in streams, rivers, lakes and/or reservoirs. Grantor agrees to cooperate in any manner necessary to accomplish the Trust's election, which may include authorizing the Trust to file for and obtain any administrative or judicial approvals; e. Effect of Loss. No loss of Water Rights through injury or abandonment, or conversion of the Water Rights as set forth above, shall be considered a severance of the title to the Water Rights from the Property or as basis for extinguishment of this Easement; f Temporary Instream Flow Use of Water Rights. The Parties recognize that certain environmental conditions, such as drought may pose a greater threat to the environmental quality and ecological diversity of streams, rivers, lakes and reservoirs than to the Conservation Values. The Parties therefore agree that Grantor may enter into water leases, contracts, emergency water loans, or similar agreements with the Colorado Water Conservation Board or other qualified entity for conservation purposes to temporarily increase instream flows and/or water levels in streams, rivers, lakes, and/or reservoirs, provided that: (I) the Trust has given its approval to such arrangements; and (2) the Water Rights shall not be used for such uses more than three out of every ten years without a written determination by the Trust that such use would not jeopardize the long -term protection of the Conservation Values. 8.3. Other Restricted Uses and Practices. A. Subdivision and Ownership. Grantor may not divide or subdivide (including de facto subdivision) the Property into more than one parcel of land. At all times the Property shall be owned as a single parcel subject to this Easement. Ownership of the single parcel by joint tenancy or tenancy in common is permitted; however, actions to partition or condominiumize the Property are prohibited; B. Commercial and Industrial Activities. Grantor shall not conduct industrial activity on the Property, and may only conduct commercial activity in a manner consistent with the terms and Purposes of this Easement; v78 071811 16 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 17 OF 49, Janice K. Vos Caudill, Pitkin County, CO C. Recreation. Non - motorized recreational uses for the public such as hiking, horseback riding, mountain biking, cross - country skiing, and hunting are permitted on the Property in a manner consistent with Sections 8.I.B and 8.1.E above. 9. PUBLIC ACCESS The general public shall have access to the Property in accordance with Section 8.1 .E, Trails, and 8.3.C, Recreation, subject to any restrictions or regulations imposed by the Grantor as necessary and appropriate to protect public health and safety (including closures during construction, maintenance, or for emergency or administrative purposes), and to protect the Property's scenic and natural Conservation Values (including seasonal closures to protect big game migration corridors and winter range). Grantor must ensure that any public access is consistent with Colorado's recreational use statute C.R.S. § 33 -41 -101 et seq. and provides indemnity to the Trust for the public's access to and use of the Property. 10. REPRESENTATIONS AND WARRANTIES Grantor represents and warrants that, after reasonable investigation and to the best of its knowledge: 10.1. 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; 10.2. 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 and regulations; 10.3. 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; 10.4. 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. 11. NOTICE OF INTENTION TO UNDERTAKE CERTAIN PERMITTED ACTIONS The purpose of requiring Grantor to notify the Trust before undertaking certain activities and uses of the Property, as identified in Section 8 or elsewhere, is to afford the Trust an v7a 071811 1 7 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 18 OF 49, Janice K. Vos Caudill, Pitkin County, CO opportunity to update its 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 notice Trust and seek its approval, according to Section 12 below, for proposed activities or uses 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 Trust's approval are required, Grantor shall notify the Trust 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 Trust 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 Trust's approval, Grantor shall notify the Trust in writing not less than 30 days in advance of the proposed activity, unless this Easement provides otherwise. 12. THE TRUST'S APPROVAL Whenever this Easement requires that Grantor obtain the Trust's approval for any activity or use of the Property, or if Grantor desires approval for any activity or use not clearly consistent with the terms or Purposes of the Easement, such approval shall be given in the Trust's reasonable discretion if the Trust determines that such activity will not damage the Conservation Values, the burden of proof for which lies with the Grantor. The Parties agree that the Trust may withhold its approval if it reasonably determines that the proposal is inconsistent with the terms or Purposes of this Easement or lacks sufficient information to allow the Trust to reach an informed decision. The Trust may condition its approval on the Grantor's acceptance of modifications, which would, in the Trust's reasonable judgment, make the proposed activity consistent with the Easement or otherwise meet any concems. The Trust shall set forth its 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 11, above). If Grantor disagrees with the Trust's judgment, decision, or determination, it may appeal through the mediation process described in 13.1 below, or using other remedies, provided however that such appeal shall be limited solely to and shall address only the merits of the request or conditional approval in the context of consistency with the Easement, its terms or Purposes. 13. TRUST'S REMEDIES: ENFORCEMENT The Trust shall have the right to prevent and correct or require correction of violations of this Easement. The Trust accepts no responsibility to monitor for or enforce violations of local, state or federal laws, codes, or regulations, or third party contracts affecting the Property now or in the future, by third parties or the public, except to the degree that any such violations may damage the Conservation Values, or be otherwise inconsistent with the Purposes or terms of this Easement, in which case, the Trust may elect to enforce, pursuant to Section 14.5. If the Trust finds what it believes is a violation, or a threat of a violation of this Easement, the Trust shall notify Grantor, the Board, the Town and the City of the nature of the alleged violation. Upon receipt of this notice, Grantor shall immediately discontinue any activity that could increase or expand the alleged violation and shall either: (a) restore the Property within 60 v7a 071811 I8 RECEPTION#: 581345, 07/20/2011 at 01:20:06 PM, 19 OF 49, Janice K. Vos Caudill, Pitkin County, CO days as is best possible to its condition prior to the violation, or if immediate restoration is not possible, Grantor shall submit a restoration plan to the Trust (with a copy to the Board, the Town and the City) within 60 days; or (b) provide a written explanation to the Trust (with a copy to the Board, the Town and the City) of the reason why the alleged violation should be permitted. If the Trust is not satisfied with Grantor's written explanation or restoration actions, the Parties agree to meet as soon as possible to resolve their difference. If a resolution cannot be achieved at the meeting, the Parties agree to attempt to resolve the dispute pursuant to Section 13.1, below. At any time, including if Grantor does not immediately discontinue any activity that could increase or expand the alleged violation, or if the Trust believes an ongoing, imminent, or threatened activity violates the Easement, the Trust 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 Trust 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 Trust's 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. The Trust, 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 Trust, and any forbearance by the Trust to exercise its rights under this Easement shall not be construed to be a waiver by the Trust of its rights, or of any term(s) of the Easement, including any subsequent breach of the same or other term(s) of this Easement. No delay or omission by the Trust in the exercise of any right or remedy shall impair such right or remedy or be construed as a waiver. The failure of the Trust to discover a violation or to take immediate legal action shall not bar the Trust from doing so in the future. In order to protect the public investment in this Easement, the Town and the City (the "back -up enforcement parties ") each are granted the individual right as a back -up enforcer to join the Trust at the Trust's request in enforcing the terms of this Easement or the terms of the Management Plan, or to pursue enforcement of this Easement or Management Plan without the participation of the Trust in the event Trust declines enforcement in accordance with this Section 13, and invites the Town and the City to enforce in its stead. In addition, should the Trust fail to monitor the Property annually as required by this Easement, the Town or the City or both may elect to assume monitoring responsibilities for that calendar year. The Town and the City may only exercise these back -up rights of enforcement after receiving such invitation from the Trust, and thereafter providing thirty (30) days' notice to Grantor, the Trust, the Town, the Board and the City of the alleged violation and the steps being taken to correct the alleged violation. The back -up enforcing parties shall use good faith efforts to implement a course of action agreeable to the Trust and both back -up enforcing parties, provided, however, in the event the back -up enforcing parties are unable to reach agreement on such actions, either back -up party may, acting v78 071811 19 RECEPTION #: 581345, 07/20/2011 at 01:20:06 P14, 20 OF 49, Janice K. Vos Caudill, Pitkin County, CO individually after receipt of invitation to participate from the Trust, undertake such back -up enforcement action without any right to contribution from the other back -up enforcing party. All reasonable costs incurred by the Trust in enforcing the terms of this Easement, including, without limitation, costs of pursuing legal action and reasonable attorney's fees, and costs of restoration necessitated by Grantor's violation of the terms of this Easement, shall be bome by Grantor, unless a court finds that the Trust acted in bad faith in seeking enforcement, in which case, the Trust shall pay Grantor's court- awarded costs and attomey fees. 13.1. 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, 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. The Board shall in no event be required to participate in any mediation. 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 Trust believes that there is ongoing damage to Conservation Values, in which case the Trust can suspend its 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 only with the consent of the Parties or their respective counsel. The mediator shall not be subject to subpoena by any Party in any subsequent litigation; D. Time Period. 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, or 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. vra 071811 20 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 21 OF 49, Janice K. Vos Caudill, Pitkin County, CO 14. COSTS, LIABILITIES, TAXES, AND ENVIRONMENTAL COMPLIANCE 14.1. 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; 14.2. 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 Trust 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; 14.3. Hold Harmless. The Grantor agrees to use its best efforts to hold the Trust and the Board harmless from liability arising from or in any way connected with: (1) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Property, regardless of cause, except to the extent due to the negligence of the Trust or any of its agents; (2) the obligations specified in Paragraph 14.1 herein; and (3) the presence or release of hazardous or toxic substances on, under or about the Property, subject to the current constraints or limitations of Colo. Const. Art. XI, Section 1, as amended from time to time, which constraints or limitations the County believes currently prohibit it from adopting a strict obligation to hold harmless the Trust. Nothing contained herein waives or is intended to waive any protections that may be applicable to the Grantor under the Governmental Immunity Act, Section 24 -10 -101 et seq., C.R.S., or any other rights, protections, immunities, defenses or limitations on liability provided by law, and subject to any applicable provisions of the Colorado Constitution and applicable laws. Grantor further agrees to add the Trust as an additional named insured on its comprehensive general liability insurance policy. Such insurance shall be carried in amounts not less than the liability limits specified in C.R.S. Section 24 -10 -1 14(1), as it may be amended from time to time, and shall provide the Trust with thirty (30) days advance written notice prior to cancellation or termination. Grantor shall, upon written request therefore from the Trust or any successor or assign, provide a Certificate of Insurance as verification of compliance with these requirements. Without limiting the foregoing, nothing in this Easement shall be construed as giving rise to any right or ability in the Trust or the Board, nor shall the Trust or the v7a 071811 21 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 22 OF 49, Janice K. Vos Caudill, Pitkin County, CO Board have any right or ability, to exercise physical or managerial control over the day - to -day operations of the Property, or otherwise to become an operator with respect to the Property within the meaning of The Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended. 14.4. Waiver of Certain Defenses. Grantor hereby waives any defense of laches, estoppel, or prescription, including the one year statute of limitations for commencing an action to enforce the terms of a building restriction or to compel the removal of any building or improvement because of the violation of the same under C.R.S. § 38-41 -119, el seq. 14.5. Acts Beyond Grantor's Control. Nothing contained in this Easement shall be construed to entitle the Trust to bring any action against Grantor for any injury to or change in the Property resulting from causes beyond Grantor's control or from any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Property. Notwithstanding the foregoing, Grantor shall be responsible for preventing, monitoring, and enforcing activities by third parties, including the public, on or affecting the Property that may violate the terms of this Easement. The Trust retains the right to enforce the terms of this Easement against third parties for violations of the Easement or damage to the Property. 15. EXTINGUISHMENT AND CONDEMNATION 15.1. 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. 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 explored all options for importing other Purposes for the Easement pursuant to the cy pres doctrine. Each Party shall promptly notify the other and the Board when it first learns of such circumstances. The amount of the proceeds to which the Trust shall be entitled, after the satisfaction of prior claims, 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 Trust 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. Grantee shall promptly remit the Board's share of these proceeds to the Board.; v7a 071811 22 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 23 OF 49, Janice K. Vos Caudill, Pitkin County, CO 15.2. Condemnation. If all or any part of the Property 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 Trust 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 Grantor and the Trust in connection with the taking or in -lieu purchase shall be paid out of the amount recovered. The Trust's share of the balance of the amount recovered shall be determined by the easement value ratio set forth in Proceeds paragraph below; 15.3. Proceeds. This Easement constitutes a real property interest immediately vested in the Trust, the value of which has not been determined as of' this date. Should the Easement be taken for public use or otherwise terminated according to the Extinguishment and Condemnation paragraphs above, Trust and Third Party Beneficiaries as enumerated in Section 22.11 shall be entitled to compensation for their proportionate interests, which shall reflect the proportionate monetary contribution of each toward the $17,000,000 purchase price of the Property by the County, which is as follows; the Board's is 14.71% ($2.5 million contributed), the Town is 11.76% ($2 million contributed), the City is 5.9% ($1 million contributed), the Trust is 2% (approximately $305 thousand contributed), and the balance of the interest (66 %) is held by the County based upon its contribution of the balance of $11,195,000. a. Reinvestment of Proceeds. In the event the Easement shall be wholly or partially extinguished, whether by condemnation or otherwise, reinvestment of the proceeds from such extinguishment shall be made in improvements to or stewardship of the subject Property or the adjacent open space parcels held by the Grantor, the Town or the City, or to other property or properties jointly agreed upon by the Parties, which, for the Easement, to the greatest extent possible, protect the same conservation values as the extinguished easement. If the Parties are unable to agree regarding the reinvestment of the proceeds from such extinguishment, the proceeds shall be divided according to the proportionate interests specified in Section 15.3 above. 16. ASSIGNMENT OF EASEMENT 16.1. This Easement is transferable, but the Trust may assign its rights and obligations under this Easement only to an organization that: (1) is a qualified organization at the time of transfer under Section 170(h) of the Internal Revenue Code of 1986, as amended (or any successor provision then applicable), and the applicable regulations promulgated thereunder; (2) is authorized to acquire and hold conservation easements under Colorado law; (3) agrees in writing to assume the responsibilities imposed on the Trust by this Easement; and v7a 071811 23 RECEPTION#: 581345, 07/20/2011 at 01:20:06 PM, 24 OF' 49, Janice K. Vos Caudill, Pitkin County, CO (4) is approved in writing as a transferee by the Board, the Town and the City, each in their individual discretion. The Trust shall provide the Board, the • Town and the City with a written request to assign the Easement at least 45 days prior to the date proposed for the assignment transaction. 16.2. The Board shall have the right to require the Trust to assign its rights and obligations under this Easement to a different organization if the Trust ceases to exist; is unable, or unqualified to enforce the terms and provisions of this Easement; or is unable to effectively monitor the Property for compliance with this Easement at least once every calendar year. Prior to any assignment under this Section 16.2, the Board shall consult with the Trust and provide Trust an opportunity to address the Board's concerns. If the Board's concerns are not addressed to its satisfaction, the Board may require that the Trust assign this Easement to an organization designated by the Board that complies with Section 16.1 (1), (2), and (3) above. Any organization designated by the Board must be approved by the Town and the City, in compliance with Section 16.1 (4) above; 16.3. If the Trust desires to transfer this Easement to a qualified organization having similar purposes as the Trust, but Grantor or the Board, the Town or the City has refused to approve the transfer, a court with jurisdiction shall transfer this Easement to another qualified organization having similar purposes that agrees to assume the responsibility imposed on the Trust by this Easement, provided that Grantor and the Board, the Town or the City shall have adequate notice of and an opportunity to participate in the court proceeding leading to the court's decision on the matter. 16.4. Upon compliance with the applicable portions of this Section 16, the Parties shall record an instrument completing the assignment in official records of Pitkin County. Assignment of the Easement shall not be construed as affecting the Easement's perpetual duration and shall not affect the Easement's priority against any intervening liens, mortgages, easements, or other encumbrances. After such transfer, the Trust shall have no further obligation or liability under this Easement. The Trust has no obligation or liability under the 1999 Easement, pursuant to Section 22.9 hereafter. 17. SUBSEQUENT TRANSFERS OF PROPERTY Grantor shall incorporate by reference the terms and conditions of this Easement in any deed or other legal instrument by which it divests itself of any interest in all or a portion of the Property. Grantor further agrees to give written notice to the Trust and the Board of the transfer of any interest at least forty -five (45) days prior to the date of such transfer and may be required to pay the Board an Additional Board Refund under Section 18 below. The failure of Grantor to perform any act required by this paragraph shall not impair the validity of this Easement or limit its enforceability in any way. Grantor further agrees to give written notice to the Town and the City of the transfer of any interest at least forty -five (45) days prior to the date of such transfer. Grantor, the Town and v7a 071811 24 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 25 OF 49, Janice K. Vos Caudill, Pitkin County, CO the City agree that any net proceeds from such transfer, after payment of any Additional Refund that may be due pursuant to Section 18, shall be reinvested in the maintenance and improvement of the Property or adjacent publically owned open space lands that are included in the scope of the Management Plan. 18. ADDITIONAL REFUND To THE BOARD, THE TOWN AND THE CITY The Board's Grant and contributions made by the Town and the City have provided partial consideration for Grantor's acquisition of fee title to the Property, associated water rights, and partial real estate interest in the Property above and beyond this Easement; therefore, any voluntary sale, conveyance, transfer, or other disposal of all or any portion of Grantor's interest in the Property or associated water rights ( "Sale "), excluding any lease of the Property or the Water Rights to a third party in the ordinary course of using the Property for permitted purposes, shall constitute a material change to the Grant that shall require prior written approval from the Board, the Town and the City, and may require a separate refund to each entity of an amount to compensate the them for use of the their respective Grant or contributions, plus administrative costs (the "Additional Refund "), in addition to any payment that they may be entitled to receive under Section 15 above. 18.1. Amount. The amount of the Additional Refund shall be based upon a percentage of Grantor's net proceeds from the Sale (which shall be defined as the fair market value of the property being sold in the Sale, minus direct transaction costs) ( "Net Proceeds "). The Additional Refund shall be determined by: a) first dividing the Board's Grant and the Town's and the City's contribution amounts by the original purchase price for fee title to the Property; b) then by multiplying the resulting ratio (14.71% for the Board, 11.76% for the Town, and 5.9% for the City) by the Net Proceeds; and c) adding interest figured from the Grant payment date at the Prime Rate listed by the Federal Reserve Bank of Kansas City, Missouri that is most current on the effective date of the Sale. The Board may, in its sole discretion, waive the requirement for payment of interest or reduce the amount of interest due at the time of the Sale. The Additional Board Refund shall be paid to the Board in cash or certified funds on or before the effective date of the Sale. The Additional Refund to the Town or the City shall be reinvested as set forth in Section 15.3 above. 18.2. Possible Exception to Refund Requirement. If a Sale occurs to a third party which is eligible to receive open space funding from the Board, and the Board has provided written confirmation of the third party's eligibility, Grantor shall not be required to pay the Board an Additional Board Refund, unless the Board determines in its sole discretion that one or more aspects of the Grant have changed that reduce the Grant project's scope from that of the original Grant as approved by the Board. (For example, if the Grantor proposed that the Grant project would include public access to the Property, and the Sale will result in substantially the same amount and type of public access, the Board will deem that a material change in the Grant project's scope has not occurred, and Grantor shall not be required to pay the Board an Additional Board Refund, v7a 071811 25 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 26 OF 49, Janice K. Vos Caudill, Pitkin County, CO unless another aspect of the Grant project has changed that reduces the Grant project's scope from that of the original Grant as approved by the Board). 19. NOTICES Any communication that either Party is required to give to the other 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 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: Pitkin County Board of County Commissioners c/o Pitkin County Open Space and Trails Director 530 E. Main Street, 3rd Floor Aspen, CO 81611 Phone: 970 - 920 -5203 Fax: 970 920 -5198 To the Trust: Aspen Valley Land Trust 320 Main Street, Suite 204 Carbondale, CO 81623 Phone: 970-963-844 Fax: 970-963-8441 To the Board: Executive Director State Board of the Great Outdoors Colorado Trust Fund 303 East 17th Avenue, Suite 1060 Denver, CO 80203 To the Town: Town of Snowmass Village c/o Town Manager P.O. Box 5010 Snowmass Village, CO 81615 To the City: City of Aspen City Manager 130 South Galena Street Aspen, CO 81611 20. RECORDATION The Trust 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. 21. AMENDMENT v7a 071811 26 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 27 OF 49, Janice K. Vos Caudill, Pitkin County, CO If circumstances arise under which an amendment to or modification of this Easement or any of its exhibits would be appropriate, Grantor and the Trust may jointly amend this Easement so long as the amendment (a) is consistent with the Conservation Values and Purpose of this Easement, (b) does not affect the perpetual duration of the restrictions contained in this Easement, (c) does not affect the qualifications of this Easement under any applicable laws, (d) complies with the Trust's policies and procedures and the Board's procedures and standards for amendments (as such procedures and standards may be amended from time to time) and (e) receives prior written approval of the Board, the Town and the City, provided corrections that do not affect the terms or Purposes of this Easement do not require such approval of the Town and the City. Any amendment must be in writing, signed by both Parties, and recorded in the records of the Clerk and Recorder of Pitkin County. For the purposes of the Board's approval under item (e) above, the term "amendment" means any instrument that purports to alter in any way any provision of or exhibit to this Easement. Nothing in this paragraph shall be construed as requiring the Trust, the Board, the Town or the City to agree to any particular proposed amendment. 22. GENERAL PROVISIONS 22.1. Definitions. A. Parties. The terms "Grantor" and "the Trust, ", 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 Trust and its successors and assigns. The term "Parties" refers collectively to both Grantor and Trust; 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. Low - Impact. The term `low- impact" refers to activities or improvements whose location, use and construction have no or negligible surface impact on the Property and do not damage the Conservation Values (i.e. have no scenic impact from public trails and rights -of -way; do not result in earthmoving, recontouring of land, construction of roads or connection to utility lines; and do not damage rivers, wetlands, riparian areas or other sensitive wildlife habitat); D. Forestry Terms. The term "clear cutting" refers to cutting or removal of a stand of trees in which essentially all or most of the trees have been removed in one operation. The term "selective cutting" refers to cutting that removes only a portion of trees in a stand, and "thinning" refers to a treatment made to reduce stand density of trees primarily to improve growth, enhance forest health, or recover potential mortality. v7a 071811 27 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 28 OF 49, Janice K. Vos Caudill, Pitkin County, CO 22.2. Controlling Law. The interpretation and performance of this Easement shall be govemed by the laws of the State of Colorado; 22.3. 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 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; 22.4. 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; 22.5. 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; 22.6. No Forfeiture. Nothing contained in this Easement will result in a forfeiture or reversion of Grantor's title in any respect; 22.7. Joint and Several Obligation. The obligations imposed by this Easement upon Grantor shall be joint and several. If the Property's ownership, now or in the future, is by a single 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; 22.8. 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 Trust's successors, transferees, and assigns, and shall continue as a servitude running in perpetuity with the Property; 22.9. 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 occurring prior to transfer shall survive transfer, including the County's and the Town's liability for acts or omissions occurring under the 1999 Conservation Easement as it encumbered the County Tract; 22.10. Captions. The captions in this instrument have been inserted solely for convenience of reference and shall have no effect upon construction or interpretation; v7a 077811 28 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 29 OF 49, Janice K. Vos Caudill, Pitkin County, CO 22.11. Third Party Beneficiaries. This Easement is entered into by and between Grantor and the Trust for the benefit of the Grantor, the Trust, the Board, the Town and the City and their respective successors and assigns, and the public, for the Purposes set forth herein This Easement is not intended to, and does not, create rights or responsibilities in any third parties, including members of the public, beyond Grantor, the Trust, the Board, the Town and the City; 22.12. Change of Conditions. A change in the potential economic value of any use that is prohibited by or inconsistent with this Easement, or a change in any current or future uses of neighboring properties, shall not constitute a change in conditions that makes it impossible for continued use of the Property for conservation purposes and shall not constitute grounds for terminating the Easement in whole or in part; 22.13. Termination of the Board. In the event that Article XXVII of the Colorado Constitution, which established the Board, is amended or repealed to terminate the Board or merge the Board into another entity, the rights and obligations of the Board hereunder shall be assigned to and assumed by such other entity as provided by law, but in the absence of such direction, by the Colorado Department of Natural Resources or its successor. 22.14. 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; 22.15. Merger. If the Trust wishes to acquire fee title to the Property or any additional interest in the Property (such as a leasehold), the Trust must first obtain the written approval of the Board. As a condition of such approval, the Board may require that the Trust first transfer the Easement to another qualified organization consistent with Paragraph 16 above; 22.16. 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 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. v7a 071811 29 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 30 OF 49, Janice K. Vos Caudill, Pitkin County, CO IN WITNESS WHEREOF, Grantor and the Trust have executed this Deed of Conservation Easement as of the date first written above. GRANTOR: By execution of this Amended and Restated Deed of Conservation Easement the County consents to and agrees to be bound the terms of this Easement and quitclaims to the Trust any interest it may have as a co- grantee of the 1999 Conservation Easement, described herein. BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, Colorado, a body corporate and politic By: 9i,e a George Newml STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) The foregoing document was acknowledged before me on this V(t'tlay of July, 2011, by George Newman, Commissioner of the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, Colorado, a body corporate and politic. WITNESS my hand Nictilificial seal. [SEAL] �J Vst•-.. «.. 1.o4 `8>� V�. ci`-"" lout q . , ' . _ commis expires: �x°� -111 colot v7n 071811 30 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 31 OF 49, Janice K. Vos Caudill, Pitkin County, CO ACCEPTED by the TRUST: ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation, G �l By: , : cif / l it c c 6ciutk i Martha Cochran, Executive Director STATE OF COLORADO ) ) ss. COUNTY OF ty /P;ld ) The foregoing instrument was acknowledged before me this 7U of July, 2011, by Martha Cochran as Executive Director of ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation. WITNESS my hand and official seal. [SEAL] 54/4 "1.4 Notary lfrblic SUZANNE STEPHENS My commission expires: 7/1/1 3 Notary Public State of Colorado v7aonan 31 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 32 OF 49, Janice K. Vos Caudill, Pitkin County, CO CONSENT OF TOWN: By execution of this Amended and Restated Deed of Conservation Easement the Town consents to the terms of this Easement, retains a right of enforcement as described in Section 13, herein, and quitclaims to the Trust any interest it may have as a co- grantee of the 1999 Conservation Easement, described herein. TOWN OF SNOWMASS VILLAGE, COLORADO, a Colorado Home Rule Municipality By: �4s - ' , Mayor By / I /L /_ _ 4 1 0 ( _ 1/ , Town Clerk STATE OF COLORADO ) n I , ) ss. COUNTY OF 0'' 1- n ) The oreg ng instrument was acknowledged before me this JO day of July, 2011, by t ( l p i neat/ as Mayor of the Town of Snowmass Village, Colorado, and by r , sits 6. Cato +-as Town Clerk of the Town of Snowmass Village, Colorado. WITNESS my • ' :'._11 seal. [SEAL] NOTA �r,,,� 1 '; 9 Notary Public 7" �Ue My commission expires: I Z ZO 124 I .0't COL �P vie 071811 32 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 33 OF 49, Janice K. Vos Caudill, Pitkin County, CO CONSENT OF CITY: By execution of this Amended and Restated Deed of Conservation Easement the City consents to the terms of this Easement and accepts a right of enforcement as described in Section 13, herein. CITY OF ASPEN, COLORADO, / By: g 4(. ✓� Michaeld, ayor STATE OF COLORADO ) ss. COUNTY OF� Thg foregoing i sirument los acknowledged before me this jday of July, 2011, by s Mayor of the City of Aspen, Co orado. WI �+ i and official seal. • [S A am! , UTIMAN 5 y Public O p y commission expires: Q 411}1 r v7a 071811 33 RECEPTION#: 581345, 07/20/2011 at 01:20:06 PM, 34 OF 49, Janice K. Vos Caudill, Pitkin County, CO EXHIBIT A Legal Description of Property Wapiti Ridge (aka Droste Mountain Park) A PARCEL OF LAND BEING COMPRISED OF PORTIONS OF THE PROPERTIES DESCRIBED IN THOSE DOCUMENTS RECORDED AS RECEPTION Nos. 340104, 340407 AND 408695 ALL OF THE PITKIN COUNTY RECORDS; SAID PARCEL OF LAND SITUATED IN SECTIONS 28, 29, 32, 33 AND 34, TOWNSHIP 9 SOUTH, RANGE 85 WEST OF THE SIXTH PRINCIPAL MERIDIAN AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE SOUTHERLY RIGHT -OF -WAY OF BRUSH CREEK ROAD, SAID POINT ALSO BEING THE NORTHEAST CORNER OF THE CONSERVATION EASEMENT DESCRIBED IN REC. NO. 410437 WHENCE THE WEST QUARTER CORNER OF SECTION 28 BEARS N57 °58'22 "E, A DISTANCE OF 3398.33 FEET; THENCE LEAVING SAID RIGHT -OF -WAY ALONG THE EASTERLY BOUNDARY LINE OF SAID REC. NOS. SI 1°25'45"W, A DISTANCE OF 310.68 FEET; THENCE LEAVING SAID EASTERLY BOUNDARY THE FOLLOWING EIGHT (8) COURSES: 1) S86 °59'26 "E, 278.65 FEET; 2) S22 °52'57 "E, 516.65 FEET; 3) S89 °39'11 "E, 1110.66 FEET; 4) N66 °06' 18 "E, 1031.47 FEET; 5) N85 °01'06 "E, 927.20 FEET; 6) N21 °59'38 "E, 729.98 FEET; 7) N73 °52'56 "E, 300.00 FEET; 8) N 16 °07'04 "W, 20.05 FEET, TO A POINT ON THE NORTH LINE OF THE S 1/2 OF THE SWI /4; THENCE ALONG SAID NORTH LINE OF THE S1/2 OF THE SW 1/4 N87 °42'1 "E, A DISTANCE OF 1573.24 FEET; THENCE ALONG THE NORTH LINE OF THE SW 1/4 OF THE SE1/4 N87 °48'01 "E, A DISTANCE OF 1319.90 FEET; THENCE ALONG THE EAST LINE OF THE S W 1 /4 OF THE SEl /4 OF SAID SECTION 28 S00 °56 "E, A DISTANCE OF 1346.21 FEET; THENCE ALONG THE SOUTH LINE OF THE SW 1/4 OF THE SE 1/4 OF SAID SECTION 28 S87 °32'39 "W, A DISTANCE OF 406.16 FEET TO A POINT ON THE BOUNDARY LINE OF THAT LAND DESCRIBED IN BOOK 619 AT PAGE 859 (RECEPTION NO. 322299) OF THE PITKIN COUNTY RECORDS; THENCE ALONG SAID BOUNDARY LINE THE FOLLOWING FOUR (4) COURSES: 1) S00 °55'57 "E, 220.10 FEET; 2) S58 °59'33 "W, 315.13 FEET; 3) S30 °06'23 "E, 1,090.00 FEET; v7a 071811 34 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 35 OF 49, Janice K. Vos Caudill, Pitkin County, CO 4) N87 °49'09 "E, 150.00 FEET TO THE SOUTHEAST CORNER OF THE NW I/4 OF THE NE1 /4 OF SAID SECTION 33; THENCE ALONG THE NORTH LINE OF THE SEI /4 OF THE NE1 /4 OF SAID SECTION 33 N87 °48'43 "E, A DISTANCE OF 1334.63 FEET; THENCE ALONG THE EAST LINE OF THE SEI /4 OF THE NE 1/4 OF SAID SECTION 33 S0l °19'45 "E, A DISTANCE OF 1343.34 FEET TO THE NORTHWEST CORNER OF GOVERNMENT LOT 25 OF SAID SECTION 34; THENCE ALONG THE BOUNDARY OF SAID LOT 25 THE FOLLOWING TWO (2) COURSES: 1) N90 °00'00 "E, 98.49 FEET; 2) S00 °00'00 "E, 71.90 FEET; THENCE ALONG THE SOUTH BOUNDARY LINE OF SAID LOT 25 AND GOVERNMENT LOTS 5, 7, AND 8 OF SAID SECTION 33 N84 °24'55 "W, 2918.13 FEET; THENCE LEAVING SAID BOUNDARY S00 °02 "W, A DISTANCE OF 1320.00 FEET; THENCE N89 °57'55 "W, A DISTANCE OF 2725.80 FEET; THENCE S00 °02'05 "W, A DISTANCE OF 396.87 FEET; THENCE S89 °40'17 "W, A DISTANCE OF 2450.86 FEET; THENCE S89 °54'31 "W, A DISTANCE OF 262.97 FEET TO THE SOUTHEAST CORNER OF SAID CONSERVATION EASEMENT DESCRIBED IN RECEPTION NO. 410437; THENCE S89 °54'31" W, 1068.71 FEET ALONG THE SOUTH LINE OF SAID CONSERVATION EASEMENT; THENCE N01 °1277" W, 1339.19 FEET ALONG THE WEST LINE OF SAID CONSERVATION EASEMENT; THENCE N89 °41 W, 166.64 FEET ALONG THE SOUTH LINE OF SAID CONSERVATION EASEMENT; THENCE N00 °09'34" E, 2463.51 FEET ALONG THE WEST LINE OF SAID CONSERVATION EASEMENT; THENCE N63 °06'27" E, 110.16 FEET ALONG THE NORTHWESTERLY LINE OF SAID CONSERVATION EASEMENT; THENCE N09 °18'28" W, 437.21 FEET ALONG THE WESTERLY LINE OF SAID CONSERVATION EASEMENT; THENCE NI0 °09'21" E, 186.19 FEET ALONG THE WESTERLY LINE OF SAID CONSERVATION EASEMENT; THENCE NI1 °14'06 "W, 56.28 FEET ALONG THE WESTERLY LINE OF SAID CONSERVATION EASEMENT TO THE SOUTH RIGHT -OF -WAY LINE OF BRUSH CREEK ROAD; THENCE THE FOLLOWING SEVEN (7) COURSES AND DISTANCES ARE ALONG THE SOUTHEASTERLY RIGHT -OF -WAY LINE OF BRUSH CREEK ROAD AND THE NORTHERLY BOUNDADRY OF SAID CONSERVATION EASEMENT: 1) N61 °33'00" E, 163.64 FEET TO A POINT OF CURVE TO THE RIGHT; 2) NORTHEASTERLY, 221.88 FEET, SAID ARC HAVING A RADIUS OF 1097.52 FEET, A CENTRAL ANGLE OF 11 °35'00" AND BEING SUBTENDED BY A CHORD THAT BEARS N67 °20'30" E, 221.50 FEET; 3) N73 °08'00" E, 573.12 FEET; 4) 201.07 FEET ALONG THE ARC OF A CURVE TO THE RIGHT, SAID ARC HAVING A RADIUS OF 1090.92 FEET, A CENTRAL ANGLE OF 10 °33'38" AND BEING SUBTENDED BY A CHORD THAT BEARS N78 °24'49" E, 200.79 FEET; 5) N79 °20'03" E, 50.53 FEET; 6) N87 °07'22 "E, 30.37 FEET; 7) N87 °55 E, 27.14 FEET, TO THE POINT OF BEGINNING; SAID PARCEL OF LAND CONTAINS 844.689 ACRES, MORE OR LESS. v7a 071811 35 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 36 OF 49, Janice K. Vos Caudill, Pitkin County, CO COUNTY OF PITKIN STATE OF COLORADO SAID PROPERTY FORMERLY KNOWN AS PARCELS 1 — 9 AND TRACT A AS SHOWN ON THE FIRST AMENDED PLAT OF BRUSH CREEK RANCH LIR -80 P.U.D. RECORDED SEPTEMBER 27, 2010 AS RECEPTION NO. 573879 OF THE PITKIN COUNTY RECORDS DESCRIPTION PREPARED BY: MARK S. BECKLER, PLS No, 28643 SOPRIS ENGINEERING, LLC 502 MAIN STREET, SUITE A3 CARBONDALE, CO 81623 v7a 071811 36 RECEPTIONS: 581345, 07/20/2011 at 01:20:06 PM, 37 OF 49, Janice K. Vos Caudill, Pitkin County, CO EXHIBIT B Legal Descriptions for County Tract and Tract A County Tract A PARCEL OF LAND LOCATED WITHIN SECTIONS 28, 29, 32, 33 AND 34 OF TOWNSHIP 9 SOUTH, RANGE 85 WEST OF THE SIXTH PRINCIPAL MERIDIAN, ALSO A PART OF THE PROPERTY DESCRIBED AS BRUSH CREEK RANCH LIR -80 PUD PER THE FIRST AMENDED PLAT THEREOF RECORDED JANUARY 10, 2010 AS RECEPTION NO. 573879 OF THE PITKIN COUNTY RECORDS. SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE COMMON BOUNDARY OF TRACT A AND PARCEL 8 OF SAID PUD, WHENCE THE 1/4 CORNER TO SAID SECTIONS 28 AND 29 BEARS N 38 °28'37" E (BASIS OF BEARINGS), A DISTANCE OF 5426.75 FEET; THENCE ALONG SAID COMMON BOUNDARY N 11 °25'45" E, a distance of 2,185.16 feet TO A POINT ON THE BOUNDARY OF PARCEL 10 OF SAID PUD; thence LEAVING SAID COMMON BOUNDARY AND ALONG THE COMMON BOUNDARY BETWEEN SAID PARCEL 8 AND SAID PARCEL 10 S 86 °5929" E, a distance of 278.65 feet TO A POINT ON THE BOUNDARY OF PARCEL 10B OF SAID PUD; thence LEAVING SAID COMMON BOUNDARY AND ALONG THE COMMON BOUNDARY BETWEEN SAID PARCEL 8 AND SAID PARCEL 10 S 22 °52'57" E, a distance of 516.65 feet TO A POINT ON THE BOUNDARY OF PARCEL 7 OF SAID PUD; thence LEAVING SAID COMMON BOUNDARY AND ALONG THE COMMON BOUNDARY OF SAID PARCEL 7 AND SAID PARCEL 1OB S 89 °39'11" E, a distance of 1,110.66 feet; thence CONTINUING ALONG SAID COMMON BOUNDARY N 66 °06'19" E, a distance of 1,031.47 feet TO A POINT ON THE EXTERIOR BOUNDARY OF SAID PUD; thence LEAVING SAID COMMON BOUNDARY AND ALONG SAID EXTERIOR BOUNDARY THE FOLLOWING SEVENTEEN (17) COURSES: 1) N 85 °01'06" E, 927.20 feet; 2) N 21 °59'38" E, 729.98 feet; 3) N 73 °52'56" E, 300.00 feet; 4) N 16 °07'04" W, 20.05 feet; 5) N 87 °42'10" E, 1,573.24 feet; 6) N 87 °48'01" E, 1,319.90 feet; 7) S 00 °56'40" E, 1,346.21 feet; 8) S 87 °32'39" W, 406.16 feet; 9) S 00 °55'57" E, 220.10 feet; 10) S 58 °59'33" W, 315.13 feet; 11) S 30 °06'23" E, 1,090.00 feet; 12) N 87 °49'09" E, 150.00 feet; 13) N 87 °48'43" E, 1,334.63 feet; 14) S 01 °19'45" E, 1,343.34 feet; v7a 071811 37 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 38 OF 49, Janice K. Vos Caudill, Pitkin County, CO 15) N 90° E, a distance of 98.49 feet; 16) S 00° E, a distance of 71.90 feet; 17) N 84 °24'55 "W., a distance of 2,367.14 feet TO A POINT ON THE CONSERVATION BOUNDARY OF SAID PUD; thence LEAVING SAID EXTERIOR BOUNDARY AND ALONG SAID CONSERVATION BOUNDARY THE FOLLOWING TWO (2) COURSES: 1) N 00° W, a distance of 780.86 feet; 2) N 90° W, a distance of 6,491.18 feet TO THE POINT OF BEGINNING. SAID PARCEL CONTAINS 437.967 ACRES, MORE OR LESS TRACT A A tract of land situate in Section 29 and 32, Township 9 South, Range 85 West of the 6th Principal Meridian, being more particularly described as follows: Beginning at a point whence the Northwest corner of said Section 32 bears 8 70 °48'37" W 1345.53 feet; thence along the South line of a 10' easement granted to Holy Cross Electric Association by deed recorded in Book 269 at Page 599 of the records of the Clerk and Recorder of Pitkin County, Colorado the following courses: N 78 °03'27" E 23.52 feet; thence N 83 °34'14" E 68.03 feet; thence N 65 °04'33" E 74.89 feet; thence N 69 °13'48" E 262.31 feet; thence N 69 °53'30" E 278.48 feet; thence N 73 0 22'11" E 19.73 feet; thence N 84 °00'00" E 40.50 feet; thence 8 88 °00'58" E 21.46 feet; thence N 73 °58'41" E 22.60 feet; thence N 62 °56'49" E 41.50 feet; thence N 65 °24'35" E 52.65 feet; thence N 76 °14'35" E 34.77 feet; thence N 78 °50'27" E 21.75 feet; thence N 73 °12'42" E 122.69 feet; thence N 77 °20'03" E 45.04 feet; thence 8 '89 °22'22" E 40.98 feet; thence - S 86 °27'01" E 60.42 feet; thence leaving said south line 8 11 °30'03" W 2369.27 feet; thence 8 11 °30'03" E 2507.72 feet to the south line(of the NE1 /4 of the SW1 /4 of said Section 32; thence S 89 °57'36" W 1'068.72 feet along said south line; thence N 01 °09'22" W 1339.19 feet along the went line of said NE1 /4 of the SW1 /4; thence N 89 °38'36" W 166.64 feet along the north line of the NW1 /4 of the SW1 /4 of said Sectin 32 to a line previously described as a fence; thence along said line the following courses: N 00 °12'39" E 2463.51 feet; thence N 63 °09'32" E 110.16 feet; thence N 09 °15'23" W 437.21 feet; thence N 10 °12'06" E 154.99 feet to the point of beginning. 0a071811 38 RECEPTION #: 581345, 07/20/2011 at 01:20:06 P14, 39 OF 49, Janice K. Vos Caudill, Pitkin County, CO EXHIBIT C Map of Property ill I I ".././/ic ow 1 , r . I=1 N4piti Ridge CE ar-a New Access Easement ` _ J Other Open Space — New Road Location -- Brush Creek - - -- Existing Trails — Existing Roads I 1 I 0 750 1 500 Feet vie 0711111 39 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 40 OF 49, Janice K. Vos Caudill, Pitkin County, CO EXHIBIT D Water Rights The "Water Rights" consist of the following: 1. 0.264 cubic feet per second from the Lemond Ditch Priority No. 37 water right, originally decreed for 0.8 cfs in Civil Action No. 132, on May 11, 1889, with an appropriation date of June 7, 1882. 2. 0.33 cubic feet per second from the Lemond Ditch Priority No. 187 water right, originally decreed for 0.7 cfs in Civil Action No. 132, on May 11, 1889, with an appropriation date ofApril2, 1888. 3. 2.118 cubic feet per second from the Lemond Ditch Second Enlargement Priority No. 446 water right, originally decreed for 4.5 cfs in Civil Action No. 3723, on August 25, 1949, with an appropriation date of September I, 1936. v7a 071811 40 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 41 OE' 49, Janice K. Vos Caudill, Pitkin County, CO EXHIBIT E Baseline Documentation Acknowledgment vla 07)811 41 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 42 OF 49, Janice K. Vos Caudill, Pitkin County, CO MIS Il. rie„ fv ✓,o.f,tP l,,.uu. ;, 4.a ATTESTATION Wapiti Ridge (aka Droste) Conservation Easement Pitkin County, Colorado In compliance with Section 1.170 -14 of the Federal Tax Regulations, and to the best of my knowledge, this Baseline Documentation Report, including text, maps, and photographs, is an accurate representation of the easement property's conservation values on the 11th day of April, 2011, the date of the site assessment for this report. The conservation values including native vegetation, important winter range, habitat connectivity, riparian areas, and other wildlife habitat as well as scenic viewsheds and rural character. te) Dale ill, Pitkin County Open Space & Trails GRANTOR Date Director for the Pitkin County Board of County Commissioners • i �l�flt4 t;r/I.avi&_ 7 -2.0 Martha Cochran, AVLT Executive Director GRANTEE Date • i• RECEPTION #: 581345, 07/20/2011 at 01:20:06 P14, 43 OF 49, Janice K. Vos Caudill, Pitkin County, CO EXHIBIT F Consents of 1999 Conservation Easement parties to this Easement v7a 071811 42 RECEPTION#: 581345, 07/20/2011 at 01:20:06 P14, 44 OF 49, Janice IC. Vos Caudill, Pitkin County, CO CONSENT TO REMOVE COUNTY TRACT FROM 1999 CONSERVATION EASEMENT Wapiti Ridge Property THIS CONSENT TO REMOVE COUNTY TRACT FROM 1999 CONSERVATION EASEMENT (the "Consent") is given this; y of March, 2011, by Bruce F. Droste, individually, and Bruce F. Droste, as Trustee of a Trust for the benefit of Edward Droste and William Droste under written Trust Instrument dated December 25, 1991 (collectively referred to herein as "Droste"). RECITALS: A. The Deed of Conservation Easement granted to the Town of Snowmass Village and the Board of County Commissioners of Pitkin County ( "Pitkin County"), which was recorded December 1, 1999 as Reception No. 438191, in the records of the Pitkio County, Colorado, Clerk and Recorder (the "1999 Conservation Easement"), encumbered 503.296 acres of land, more or less, located in Pitkin County, Colorado (the "1999 CE Property"). A portion of the 1999 CE Property was conveyed to Pitkin County by deed recorded on December 30, 2010 as Reception No. 576407 (the "County Tract"). The remaining portion of the 1999 CE Property is owned by Droste (the "Droste Tract"). 13. Pitkin County purchased the County Tract for the purpose of including the County Tract in Pitkin County's Open Space and Trails Program, using its own funds and funds provided by the City of Aspen and the Town of Snowmass Village. The December 2, 2010 Contract to Buy and Sell Property pursuant to which Pitkin County acquired the County Tract (the "Contract") acknowledges that Pitkin County had submitted a grant request to the State Board of the Great Outdoors Colorado Trust Fund ( "COCO ") for reimbursement of a portion of the funds Pitkin County used for the purchase. The Contract requires Droste to cooperate with the efforts of Pitkin County to fulfill the grant requirements of GOCO for such reimbursement. C. The 1999 Conservation Easement allows the landowner to prohibit public access. GOCO requires that a conservation easement be placed on the County Tract which permits public access. The Droste Tract continues to be privately held and public access is not intended to be required for the Droste Tract by the parties to the 1999 Conservation Easement. D. Droste, Pitkin County and the Town of Snowmass Village wish to remove the County Tract from the 1999 Conservation Easement so that a new and separate conservation may be granted for the County Tract which permits public access and includes other provisions necessary to obtain LOCO funding. NOW, THEREFORE, Droste hereby consents to the recording of a new Deed of Conservation Easement that will encumber the County Tract and agrees that upon such recording the County Tract is released from and nn longer encumbered by the 1999 Co . ation Easement. Bruce F. Droste, individually Bruce F. Droste, as Trustee of a Trust for the benefit of Edward Droste and William Droste under written Trust Instrument dated December 25, 1991 State of Colorado ) County of Pitkin ) The forgoing instrument was acknowledges before me this J day of March, 2011 by Bruce F. Droste, individually, and Bruce F. Droste, as Trustee of a Trust for the benefit of Edward Droste and William Droste under written Trust Instrument dated December 25, 1991. RECEPTION #: 581342, 07/20/2011 at 01:11:51 PM, Mo County/Droste/Co le 1 OF 2, R 80.00 Doc Code CONSENT 1 Janice K. Vos Caudill, Pitkin County, CO RECEPTION#: 581345, 07/20/2011 at 01:20:06 PM, 45 OF 49, Janice K. Vos Caudill, Pitkin County, CO WITNESS my hand and official seal. • My Commission expires: I I I , e [SEAL] ''' #1 44. tAliPc- 4 frek' '''''''' • otary Public PUBLIGet_ oL.Q tt .4‘ c drr.: - e e%C`'‘ RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 46 OF 49, Janice K. Vos Caudill, Pitkin County, CO RECEPTION#: 661343, 07/2012011 at 01:11:62 PM, 1 OF 2, R $0.00 Doc Code CONSENT CO Janice K Vos Caudill. Pitkin Cou�y CONSENT TO REMOVE COUNTY TRACT FROM 1999 CONSERVATION EASEMENT Wapiti Ridge Property THIS CONSENT TO REMOVE CQUNTY TRW; 'I FROM 1999 CONSERVATION EASEMENT (the "Consent ") is given this day of 2011, by the Town of Snowmass Village, Colorado, a Colorado Home Rule Municipality (refe to herein as " Snowmass Village "). RECITALS: A. The Deed of Conservation Easement granted to Snowmass Village and the Board of County Commissioners of Pitkin County ( "Pitkln County "), which was recorded December 1, 1999 as Reception No. 438191, in the records of the Pitkin County, Colorado, Clerk and Recorder (the "1999 Conservation Easement"), encumbered 503.296 acres of land, more or less, located in Pitkin County, Colorado (the "1999 CE Property"). A portion of the 1999 CE Property was conveyed to Pitkin County by deed recorded on December 30, 2010 as Reception No. 576407 (the "County Tract"). The remaining portion of the 1999 CE Property is owned by Bruce F. Droste, individually, and Bruce F. Droste, as Trustee of a Trust for the benefit of Edward Droste and William Droste under written Trust Instrument dated December 25, 1991 (the "Droste Tract "). B. The 1999 Conservation Easement was acquired by Snowmass Village and Pitkin County pursuant to an Intergovernmental Agreement Concerning the Droste Property between them, recorded on December 12, 1999 as Reception No. 438113 (the "Intergovernmental Agreement"). C. Pitkin County purchased the County Tract for the purpose of including the County Tract in Pitkin County's Open Space and Trails Program, using its own funds and funds provided by the City of Aspen and the Town of Snowmass Village. Pitkin County had submitted a grant request to the State Board of the Great Outdoors Colorado Trust Fund ( "GOCO ") for reimbursement of a portion of the funds Pitkin County used for the purchase. D. The 1999 Conservation Easement allows the landowner to prohibit public access. GOCO requires that a conservation easement be placed on the County Tract which permits public access. The Droste Tract continues to be privately held and public access is not intended to be required for the Droste Tract by the parties to the 1999 Conservation Easement. E. Droste, Pitkin County and Snowmass Village wish to remove the County Tract from the 1999 Conservation Easement so that a new and separate conservation easement may be granted toj the Aspen Valley Land Trust, a Colorado non- profit corporation, which encumbers the County Tract and other property, and which permits public access and includes other provisions necessary to obtain GOCO funding (the "Droste Mountain Park Conservation Fay.ment "). NOW, THEREFORE, Snowmass Village hereby consents to the recording of the new Droste Mountain Park Conservation Easement that will encumber the County Tract and other property to which this Consent is attached, and agrees that upon such recording (1) the County Tract is released from and no longer encumbered by the 1999 Conservation Easement; and (2) any obligations under the Intergovernmental Agreement that pertain to the County Tract are merged into the rights and responsibilities of the County and Snowmass Village under the Droste Mountain Park Conservation Easement, and the Intergovernmental Agreement is of no further force or effect as to the County Tract. Pitkin County/SnowmassVinngeConsent 2 1 RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 47 OF 49, Janice K. Vos Caudill, Pitkin County, CO TOWN OF SNOWMASS VILLAGE, COLORADO, A COLORADO HOME RULE MUNICIPALITY: EySQlcT`^..a"✓ , Mayor 4 a2-744 . 6.4.) , Town Clerk Date: 74gh( STATE OF COLORADO ) )ss. COUNTY OF PITKIN ri • f Ttg foregoing document was acknowled beforg me f '" Zo1l by rill!. wain ea i as the Mayor and � oktlh 15- oleo r+es the Town Clerk of the Town of Snowmass Village, Colorado, a Colorado Home Rule Municipality. Witness my hand and official seal. N G Wit My commission expires: 11/1 7 7Al N O T as►,111 A • lf RY �� Notary Public • $ � 1 c - O COLO ' wt: Pitkin County /SnowwuValageConsent 2 2 RECEPTIONS: 581345, 07/20/2011 at 01:20:06 PM, 48 OF 49, Janice K. Vos Caudill, Pitkin County, CO / /f/'��Dvc'd by Otr /HG NAP /1 3 - giNe e CONSENT TO REMOVE COUNTY TRACT FROM 1999 CONSERVATION EASEMENT Wapiti Ridge Property THIS CONSENT TO REMOVE COUNTY TRACT FROM 1999 CONSERVATION EASEMENT (the "Consent ") is given this I9t'tlay of Sv-1 , 2011, by the Board of County Commissioners of Pitkin County, Colorado (referred to hereih as "Pitkin County"). RECITALS: A. The Deed of Conservation Easement granted to the Town of Snowmass Village and Pitkin County, which was recorded December 1, 1999 as Reception No. 438191, in the records of the Pitkin County, Colorado, Clerk and Recorder (the "1999 Conservation Easement "), encumbered 503.296 acres of land, more or less, located in Pitkin County, Colorado (the "1999 CE Property"). A portion of the 1999 CE Property was conveyed to Pitkin County by deed recorded on December 30, 2010 as Reception No. 576407 (the "County Tract "). The remaining portion of the 1999 CE Property is owned by Bruce F. Droste, individually, and Bruce F. Droste, as Trustee of a Trust for the benefit of Edward Droste and William Droste under written Trust Instrument dated December 25, 1991 (the "Droste Tract "). B. The 1999 Conservation Easement was acquired by Snowmass Village and Pitkin County pursuant to an Intergovernmental Agreement Concerning the Droste Property between them, recorded on December 12, 1999 as Reception No. 438113 (the `Intergovernmental Agreement "). C. Pitkin County purchased the County Tract for the purpose of including the County Tract in Pitkin County's Open Space and Trails Program, using its own funds and funds provided by the City of Aspen and the Town of Snowmass Village. Pitkin County had submitted a grant request to the State Board of the Great Outdoors Colorado Trust Fund ( "GOCO ") for reimbursement of a portion of the funds Pitkin County used for the purchase. D. The 1999 Conservation Easement allows the landowner to prohibit public access. GOCO requires that a conservation easement be placed on the County Tract which permits public access. The Droste Tract continues to be privately held and public access is not intended to be required for the Droste Tract by the parties to the 1999 Conservation Easement. E. Droste, Pitkin County and Snowmass Village wish to remove the County Tract from the 1999 Conservation Easement so that a new and separate conservation easement may be granted to the Aspen Valley Land Trust, a Colorado non - profit corporation, which encumbers the County Tract and other property, and which permits public access and includes other provisions necessary to obtain GOCO funding (the "Droste Mountain Park Conservation Easement "). NOW, THEREFORE, Pitkin County hereby consents to the recording of the new Droste Mountain Park Conservation Easement that will encumber the County Tract and other property to which this Consent is attached, and agrees that upon such recording (1) the County Tract is released from and no longer encumbered by the 1999 Conservation Easement; and (2) any obligations under the Intergovernmental Agreement that pertain to the County Tract are merged into the rights and responsibilities of the County and Snowmass Village under the Droste Mountain Park Conservation Easement, and the Intergovernmental Agreement is of' no further force or effect as to the County Tract. RECEPTIONS: 581344, 07/20/2011 at Pitkin County/CountyConsent 2 01:11:53 PM, 1 OF 2 R. $0.00 Doe Co N Janice K. Vo Caudill P County , CO RECEPTION #: 581345, 07/20/2011 at 01:20:06 PM, 49 OF 49, Janice K. Vos Caudill, Pitkin County, CO BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO: 1 By: . I Date: `fil 9I 1) George Newman, Comm sioner STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) }t The foregoing document was acknowledged before me on July ', 2011, by George Newman, Commissioner of the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, Col a body corporate and politic. ````` CS'. A e ey 14- -- Witness my hand and official seal. ` i TAk 1 My commission expires: ittanats Ex s °; i J . Notary Public U ...... n itlit.. `. _ ft= Recommended for Approval: ' , n i 0 -ttC 1 2 �,4 A\ Dale Will, Director, 0 Space and Trails Pitkin County/CountyConsent 2 2