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HomeMy WebLinkAboutresolution.council.006-03 RESOLUTION NO. ¢ Series of 2003 A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT TO BUY AND SELL REAL ESTATE BETWEEN THE CITY OF ASPEN AND HOLY CROSS ENERGY FOR THE PURCHASE BY THE CITY OF ASPEN OF THE HOLY CROSS PROPERTY ADJACENT TO THE CASTLE CREEK BRIDGE, AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID DOCUMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a Contract to Buy and Sell Real Estate between the City of Aspen and Holy Cross Energy for the purchase by the City of Aspen of Holy Cross property adjacent to the Castle Creek Bridge, ali as more specifically described in the Contract appended hereto as an exhibit. NOW, WHEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of the City of Aspen hereby approves that c6rtain Contract to Buy and Sell Property, the Conservation Easement and Utility easement in substantially the forms as appended hereto as exhibits and the City Manager is hereby authorized to execute and deliver said documents as appended hereto as exhibits in order to consummate the contemplated transactions. Dated: ~.r~~7~ ,2003. //~t~ / / I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held ~~-~; 2003. K CONTRACT TO BUY AND SELL REAL ESTATE THIS CONTRACT, made and entered on this ,2003, by and between the City of Aspen, ("Purchaser"), a Colorado home rule municipal corporation, and Holy Cross Energy ("Seller"). WITNESSETH, that the Seller wishes to sell and Purchaser desires to purchase certmn real properly further described herein (the "Parcel"). NOW, THEREFORE, the parties hereto, for the consideration hereinafter set forth, agree as follows: PARTiES AND PROPERTY. The City of Aspen agrees to buy and the Seller agrees to sell, on the terms and conditions set forth below, the following described real proper~y situated in the County of Pitkin, State of Colorado. to wit: That portion of the NE1/4SWl/4 of Section 12, Township 10 South, Range 85 West of the 6th P.M., described as follows: Commencing at Corner no. 1 from which the West quarter coruer of said Section 12 bears N 80012'48" W 1732.95 feet, being also a point which bears N 81°9, E 428 feet from Coruer No. 3 of the Holden Tract: Thence S 75 o 49' E 139.64 feet to Corner No. 2; Thence N 04° 11' E 288.38 feet to Corner No. 3; Thence N 75 o 49' W 89.56 feet to Corner No. 4; Thence S 14 o 1 I' W 284.00 feet to the point of beginning. 2. PURCHASE PRICE AND TERMS. The total purchase price for the Parcel shall be FIVE HUNDRED THOUSAND DOLLARS ($500,000.00). The purchase price for the Parcel shall be payable in U.S. dollars in cash or certified funds as follows: a. Earnest Money. $5,000.00 in the form of a check, as earues~ money deposit and part payment of the purchase price, payable to and held by Pitkin County Title in its trust account on behalf of Purchaser and Seller. All earnest money shall be placed in an interest bearing account with all interest accruing to the Purchaser. Said sum is to be delivered to the closing agent at or before closing. In the event that the contingencies set forth at Section 3 below are not satisfied, the earnest money shall forthwith be returned to Purchaser together with any interest earned. b. Cash at Closing. $495,000.00, plus closing costs, to be paid by Purchaser at closing in funds that comply with all applicable Colorado laws. which include cash. electronic transfer funds, certified check, and cashier's check (Good Funds). 3. CONTINGENCIES. The transactions contemplated herein are specifically contingent upon the following: a. The receipt of a complete release of the property which is the sub3ect mater of this Contract by Rural Utilities Services and National Rural Utilities Cooperaive Finance Corporation from the lien of a first mortgage against such property by such agencies, to be received by Holy Cross no later than five (5) days prior to the date of closing. b. Purchaser shall deliver to Seller a resolution of the City of Aspen City Council authorizing the execution of this Contract within thirty (30) days following the execution of this Contract. 4. EVIDENCE OF TITLE Seller shall furnish to Purchaser, at Seller's sole cost and expense, a currem ALTA commitment for owner's title insurance on the Parcel in an amount equal to the purchase price, from a title company acceptable to Purchaser, with all standard exceptions concerning liens for labor, servtce, or maerials not of record, and in an amount equal to the purchase price, together with any copies of all instruments listed in the schedule of exceptions of said title insurance commitment on or before fourteen (14) days following acceptance of this contract by Seller. The title insurance commitment, together with any copies of instruments furnished pursuant to this Paragraph 4, shall constitute the Title Documents. 5. TITLE. a. Title Review. Purchaser shall have the right to inspect the Title Documents. Written notice by Purchaser of unmerchantability of title or of any other unsatisfactory title condition shown by the Title Documents shall be signed by or on behalf of the Pumhaser and given to Seller on or within fourteen (14) calendar days after receipt by Purchaser of any Title Documents or endorsements adding new exceptions in the title commitment together with a copy of Title Documents adding new exceptions to title. If Seller does not receive Purchaser's notice by the date(s) specified above, Purchaser accepts the condition of the title as disclosed by the Title Documents as satisfactory. b. Matters Not Shown by the Public Records. Seller shall deliver to Pumhaser, on or before the date set for providing Title Documents, ume copies of all leases(s) and survey(s) in Seller's possession pertaining to the Parcel and shall disclose to Purchaser all easements, liens and other title maters not shown by the public records of which Seller has actual knowledge. Purchaser shall have the right ro Inspect the Parcel to determine if any third party has any right in the Parcel not shown by the public records (such as unrecorded easements, unrecorded lease, or boundary line discrepancy). Written notice of any unsatisfactory condition(s) disclosed by Seller or revealed by such inspection shall be signed by or on behalf of Pumhaser and given to Seller on or within thirty (30) calendar days after receipt by Purchaser of the Title Documents. If Seller does not receive Purchaser's notice by said date, Purchaser accepts title subject to such rights, if any, of third parties of which Purchaser has actual knowledge. c. Special Taxing Districts. SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO GENERAL OBLIGATION INDEBTEDNESS THAT IS PAID BY REVENUES PRODUCED FROM ANNUAL TAX LEVIES ON THE TAXABLE PROPERTY WITHIN SUCH DISTRICTS. PROPERTY OWNERS IN SUCH DISTRICTS MAY BE PLACED AT RISK FOR INCREASED MILL LEVIES AND EXCESSIVE TAX BURDENS TO SUPPORT THE SERVICING OF SUCH DEBT WHERE CIRCUMSTANCES ARISE RESULTING IN THE INABILITY OF SUCH A DISTRICT TO DISCHARGE SUCH INDEBTEDNESS WIYTHJOUT SUCH AN INCREASE IN MILL LEVIES. PURCHASER SHOULD INVESTIGATE THE DEBT FINANCING REQUIREMENTS OF THE AUTHRORIZED GENERAL OBLIGATION INDEBTEDNESS OF SUCH DISTRICTS, EXISTING MILL LEVIES OF SUCH DISTRICTS SERVICING SUCH INDEBTEDNESS, AND THE POTENTIAL FOR INCREASE IN SUCH MILL LEVIES. In the event the Parcel is located within a special taxing district and Purchaser desires to terminate this conrrac~ as a result, if written notice is given to Seller on or before the date set forth in subsection 5(b), this contract shall then terminate. If Seller does not receive Purchaser's notice by the date specified above, Purchaser accepts the affect of the Parcel's inclusion in such taxing district(s) and waives the right to so terminate. d) Right to Cure. If Seller receives notice of merchantability of title or any other unsatisfactory title condition(s) as provided in subsection (a) or (b) above, Seller shall use reasonable effort to correct the unsatisfactory title condition(s) prior to the date of closing. If Seller fails to correct said unsatisfactory title condition(s) on or before the date of closing, this contract shall then terminate, provided, however, Purchaser may, by written notice received by Seller, on or before closing, waive objection to said unsatisfactory title condition(s). If Purchaser waives objections te title defects, the sale of the real property shall close as scheduled herein. 6. COVENANTS, REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby covenants, represents and warrants to the Purchaser the following, all of which shall be tree, accurate and complete as of the date hereof and shall survive the closing: a. Status and Authority. Seller has the right, legal capacity and authority to enter into and perform its obligations under this Contract. and the documents to be executed and delivered pursuant thereto. b. No Liabilities. Prior to or at the time of closing, Seller shalI pay, or otherwise secure the release of, every debt. account payable, liability or obligations or any nature whatsoever, contingent or otherwise, that is, or could become, a lien or other encumbrance against the Parcel. and Seller shall not engage in any action with respect ro the Parcel between the date of execution of this Contract and the closing date that could give rise to a lien or claim against the Parcel. c. Litigation. No action, suit or proceeding is pending or, to the best of Seller's knowledge, threatened against the Parcel or Seller or affecting Seller's interest in, management of. or other activities with respect to, the Parcel. Seller is not in default of any order of any court, arbitrator or governmental body respecting the subject Parcel. d. Environmental Matters. 1'o the best of the Seller's knowledge, the Parcel, including related soils, water and groundwater, is not contaminated by, and has never been used for, the generation, transportation, treatment, storage or disposal of any hazardous substance or environmental pollutantls) except those which may have been used by Seller during its occupancy of the Parcel. e. No Notice of Violation. Seller has no knowledge of and has received no notice of any pollution, health, safety, or environmental violation with respect to the Parcel or any portion thereof which has not been cured. f. No Conflict. The execution and delivery of this Contract and the documents required hereunder, and the consmmmation of the transactions contemplated herein, will not: (1) conflict with or be in contravention of any provision of any law, order, role or regulation applicable to Seller or the Parcel; (2) result in the breach of any of the terms or provisions of. or constitute a default under, any agreement or other instrument to which Seller is a party, or by which it or any portion of the Parcel may be bound or affected; (3) permit any party to terminate any such agreement or instrument or to accelerate the maturity of any indebtedness or other obligation of the Seller; or (4) result in any lien. charge or encumbrance of any nature on the Parcel other than as permitted by this Contract. g. True and Correct Information. To the best of Seller's knowledge, no document, certificate or written statement furnished to the Purchaser and its attorney by Seller in connection with this transaction contains or will contain any untrue statement of a material fact or omits or will omit to state any material fact necessary in order to make the statements contained therein not misleading. Additionally, Seller has disclosed ail encumbrances and/or defects in title not shown by the public records and all title documents of which Seller has actual knowledge. h. Use of Property Pending Closing. Between the date of this Contract and the closing date, Seller: (i) Shall maintain the Parcel in its current condition, normal wear and tear excepted; (ii) Shall not permit the Parcel to be used or operated in any manner that would be in violation of any local, state or federal law or regulation. i. No Other Contract. There are no other contract or agreements, oral or written, which affect the Parcel, which will survive the closing, except as discIosed in the title insurance policy as provided the Purchaser pursuant to Paragraph 4 above. 7. INSPECTION. N/A. 8. CLOSING. The date of closing shall be the date for delivery of deed as provided herein. The parties hereto agree that closing shall be scheduled no later than May 31, 2003. 9. DELIVERY OF TITLE AND EASEMENT. Subject to tender or payment on closing as required herein and compliance with the other terms and provisions hereof, Seller shall execute and deliver a good and sufficient general warranty deed at closing conveying fee simple title to the Parcel to the Purchaser and conveying the Parcel free and clear of all taxes except for pro-rata share of taxes for the year of closing; and free and clear of all liens for special improvements installed as of the date of closing, whether assessed or not; and free and clear of all liens and encumbrances except those disclosed by the title commitment which do not, in the Purchaser's reasonable discretion, render title unmerchantable. Within a reasonable period of time not to exceed ninety (90) days, Seller agrees to pay full costs and premiums for, and deliver to the Purchaser, fully executed title insurance policies consistent with the title insurance commitment referenced in Paragraph 4. I0. ALLOCATION OF TAXES. N/A 1 I. CLOSING COSTS, DOCUMENTS AND SERVICES. a. The parties hereto shall pay their respective closing costs at closing, except as other~vise provided herein. b. The parties hereto shall sign and complete all customary or required documents at or before closing. c. Fees for real estate closing and settlement servtces shall not exceed $500.00 and shall be shared equally at closing by the parties hereto. d. Seller, at its sole expense, shall deliver to the Purchaser a current certificate of taxes due covering the Parcel and a statement of personal property taxes due, both prepared by the Pitkin County Treasurer. e. The Earnest Money and Cash at Closing, less closing costs, shall be paid over to the Seller at closing. 12. POSSESSION. Possession of the Parcel shall be delivered to the Purchaser on the date of closing. If Seller, after closing, fails to deliver possession on the date herein specified, Seller shall be subject to eviction and shall be additionally liable for payment of $500.00 per day as liquidated damages from the date of agreed possession until possession is delivered. 13. TIME OF ESSENCE/DEFAULT/REMEDIES Time is of the essence hereof. If any note or check received or any of the payments due hereunder is not paid. honored or tendered when due, or if any other obligation hereunder is not performed within the time frames specified herein, there shall be the following remedies: 5 a. ~ THE PURCHASER IS IN DEFAULT, then Seller may elect to treat this Contract as canceled, in which case all payments and things of value paid hereunder shall be forfeited and retained on behalf of Seller, and Seller may recover such damages as may be proper, or Seller may elect to treat this Contract as being tn full force and effect, whereupon Seller shall have the right to an action for specific performance or damages, or both. b. 1t: SELLER IS 1N DEFAULT, the Purchaser may elect to treat this Contract as terminated, in which case all money payments and things of value paid hereunder shall be returned forthwith to the Purchaser and the Purchaser may recover such damages as may be proper, or may elect to treat this Contract as being in full force and effect, whereupon the Purchaser shall have the right to an action for specific performance or damages. c. Anything to the contrary herein notwithstanding, ~n the event of any litigation arising out of this Contract. the tour[ may award to the prevailing party its reasonable costs and expenses, including attorneys and expert witness fees 14. SURVIVAL OF COVENANTS, REPRESENTATIONS AND WARRANTiES. The covenants, representations, warranties and indemnities made by the parties to this Contract. and the obligations and agreements to be performed or complied with by the respective parties hereunder on or before the closing date. shall survive the closing, but shall terminate and be of no further force and effect on the third anniversary of the date of closing. 15. ENTIRE AGREEMENT. This Contract constitutes the entire agreement between the parties hereto, and supersedes all prior and contemporaneous agreements, representations and understandings of the parties regarding the subject matter of this Contract. No supplement, modification or amendment of the Contract shall be binding unless executed in writing by the parties hereto. 16. COUNTERPARTS. This Contract may be executed in one or more counterparts, each of which shall be deemed an original, but ali of which together shall constitute one and the same instrument. 17. BINDING EFFECT. This Contract shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, successor and assigns. The Purchaser may in its sole discretion, and without the prior consent of Seller, assign all of the Purchaser's right hereunder to, or cause title to the Parcel to be taken in the name of non-profit nominee(si selected by the Purchaser. 18. RECOMMENDATION OF LEGAL COUNSEL. By signing this document, the parties hereto acknowledge the advisability of obtaining the advice of independenl legal regarding examination of title documents and the terms of this Contract. 19. GOVERNING LAW. This Contract shall be governed by and be construed in accordance with the laws of the State of Colorado and the parties hereto hereby consent to the 6 exclusive jurisdiction of the Colorado state courts in the evem of any controversy or stat arising hereunder. 20. SEVER_ABILITY. If any provision of this Contract ~s held by a cour~ of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provtsions of this Contract shall remain m full'force and effect and shall in no way be affected, ~mpaired or invalidated. 21. TERMINATION. In the event this Contract is terminated for any reason, pursuant to the terms hereof, all money payments, with any accrued interest, and things of value paid hereunder shall be returned forthwith to the Purchaser. 22. NOTICES. All notices and other communications tendered in connection with this Contract shall be in ~vfiting, and shall be deemed to have been duly given when delivered in person or by telefax, or on the fourth day after mailing, if mailed registered or certified mail, postage prepaid and properly addressed as follows: To Purchaser: Office of the City Manager City of Aspen 130 South Galena Street Aspen, Colorado 81611 With a copy to the City Attorney at the same address. To Seller: Robert H. Gardner Holy Cross Energy P.O. Drawer 2150 Glenwood Springs, CO 81602 23. EARNEST MONEY DISPUTE. Notwithstanding any termination of this contract. Purchaser and Seller agree that in the event of any controversy regarding the earnest money and things of value held by broker or closing agent, unless mutual closing instructions are received by the holder of the earnest money and things of value, broker or closing agent shall not be required to take any action but may await any proceeding, or at broker's or closing agent's option and sole discretion, may interplead all parties and deposit any money or things of value into a court of competent jurisdiction and shall recover court costs and reasonable attorney fees. 24. FACSIMILE TRANSMISSIONS. It is mutually agreed upon by all the parties to this Contract that. if necessary, facsimile communication shall be an acceptable and binding form of communication. An original shall be provided to the other party(ies) at closing with original signatures. 25 ADDITIONAL PROVISIONS. Purchaser and Seller agree and acknowledge that Colorado Revised Statute Section 39-22-604.5 provides that in the case of any conveyance of a Colorado real property interest, the person or party providing closing and settlement servtces shall be required to withhold an amount equal to 2% of the sales price or the net proceeds resulting from such conveyance, whichever is less, when the transferor is a non-resident of the State of Colorado. Seller shall be obligated to either comply with the withholding requirements of CRS 39-22-604.5 or provide an affidavit in form and content satisfactory to the person or parry closing and settlement services certifies that Seller is not subject to the withholding requirements. Seller hereby warrants tha! it is nor subject to withholding as defined under Internal Revenue Code Section 897 (Foreign Person Transferor) and will execute an affidavit to that effect prior to closing. 26. TIME LIMIT FOR ACCEPTANCE. Purchaser's offer as set forth in this instrument is time limited as set forth below. If this proposal is accepted by Seller in writing and Purchaser receives notice of such acceptance on or before Friday, June 14, 2002, at 4:00 p.m. in Aspen, this instrument shall become a contract between Seller and Purchaser, subject only to the terms and conditions set forth herein (including the contingencies listed at Section 3), and shall inure to the benefit of the heirs, successors and assigns of such parties. CITY OF ASPEN: By: City Manager Date (This section to be completed by Seller) 27. Seller accepts the above proposal this day of ,2002. (Seller) By: Date Title: JPW-O1/22/2003-G:\john\word~agr\holycrossprov.doc DEED OF CONSERVATION EASEMENT IN GROSS THIS DEED OF CONSERVATION EASEMENT is granted this~day of ,o~,~s,~, 2003, by the City of Aspen, a Home Rule Municipality Incorporated in the State of Colorado ("Grantor"), to and for the benefit of ASPEN VALLEY LAND TRUST. a Colorado nonprofit corporation. 320 Main Street. Suite 204. Carbondale. Colorado 81623, [the "Trust")(collectively, the "Parties"). RECITALS WHEREAS, Grantor is the sole owner in fee simple of certain real property in Pitkin County, State of Colorado, more particularly described in Exhibit A (the "Property"). The Property is comprised of approximately .94 acres of land. The term "Property" shall hereinafter be defined as the land (there are no water rights associated with the property); and WHEREAS, the Property possesses natural scenic and open space values (collectively, "Conservation Values") of importance to the Trust, the people of the City of Aspen, and the people of the State of Colorado that are worthy of preservation; and WHEREAS, in particular, the property adjoins Castle Creek and is highly visible from State Highway 82 at the Castle Creek Bridge at the entrance to the City of Aspen; and WHEREAS, the specific Conservation Values of the Property are documented in an lnvemory of relevant features of the Property, dated June 30, 2002, incorporated herein as Exhibit B (or on file at the office of the Trust) ("Baseline Documentation"), which consists of reports, maps, photographs, and other documentation that the Parties agree provides, collectively, an accurate representation of the Property at the time of this grant and which is intended to serve as an objective information baseline for monitoring compliance with the terms of this grant; and WHEREAS, Grantor intends that the Conservation Values of the Property be preserved and maintained by the continuation of land use patterns existing at the time of this grant, which the Trust acknowledges and agrees do not significantly impair or interfere with those values; and WHEREAS, Grantor intends, as owner of the Property, to convey to the Trust the right to preserve and protect the Conservation Values of the Property in perpetuity; and WHEREAS, 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 of the Property for the benefit of this generation and the generations to come; and WHEREAS, the Trust is a charitable organization as described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code") and is a publicly supported organization as described in Section 170(b)(1)(A) of the Code whose primary purpose ~s to preserve and protect the natural, scenic, agricultural, historical, and open space resources of the Pitkin County and Roaring Fork Valley area, including the area in which the Property is located, by assisting landowners who wish to protect their land in perpetuity, and is a "qualified organization" to do so within the meaning of Section 170(h)(3) of the Code; and 533153.1 WHEREAS, the State of Colorado has recognized the importance of private efforts toward the preservation of natural systems in the State by the enactment of C.R.S. 38-30.5-101 et seq.; and WHEREAS. the Board of Directors of the Trust has duly adopted a resolution approving the Trust's execution and acceptance of Grantor's gift of this Conservation Easement. NOW, THEREFORE, m consideration of the above and the mutual covenants, terms, conditions, and restrictions contained herein, and pursuant to the laws of the State of Colorado, and in particular C.R.S. 38-30.5-101 et seq., Grantor hereby voluntarily grants and conveys to the Trust, its successors and assigns, a Conservation Easement in Gross in perpetuity, consisting of the rights and restrictions enumerated herein, over and across the Property (the "Easement"). 1. Purposes. The purposes of this Easement are to assure that the Property will remain forever in its scenic and open space condition, subject to the uses of the Property permitted hereunder, and to prevent any use of the Property that will impair or interfere with the Conservation Values of the Property and, in the event of lheir degradation or destruction, to restore such Conservation Values of the Property. Grantor intends that this Easement will confine the use of the Property to such activities, including, without Iimitation, those involving recreation, conservation education, and general conservation purposes, as are consistem with the purposes of this Easement. Pursuant to the terms of C.R.S. 38-30.5-101 et seq., the Property preserved hereby may not be converted or directed to any uses other than those provided herein. 2. Baseline Documentation. The Parties acknowledge that Baseline Documentation of the Property has been prepared by a competent naturalist familiar with the environs. The Baseline Documentation has been reviewed and approved by the Trust and the Grantor as an accurate representation of the biological and physical condition of the Property at the time of this grant. Grantor has retained a copy of the Baseline Documentation for its records and a copy of the Baseline Documentation is on file with the Trust. 3. Rights of Trust. To accomplish the purposes of this Easement, Grantor conveys the following rights to the Trust: 3.1. The right to preserve and protect the Conservation Values of the Property in perpetuity; and 3.2. The right to enter upon the Property at reasonable times, to inspect the Property thoroughly, to monitor Grantor's compliance with and otherwise enforce the terms of this Easement; provided that such entry shall be upon twenty-four hour prior notice to Grantor, and except 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 this Easement. The Trust shall not unreasonably interfere with Grantor's use and quiet enjoyment of the Property; and 3.3. The right to prevent any activity on or use of the Property that is inconsistent with the purposes of this Easement, or which may have an adverse impact on the Conservation Values. of the Property, and to require the restoration of such areas or features of the Property that are damaged by any inconsistent activity or use; and 533153.1 2 3.4. Any other fights that the Parties may approve consistem with the purposes of this Easement and the Conservation Values. (i.e., enhancement projects, right to identify conservation values of the property or conduct scientific studies.) 4. Prohibited Uses. Any activity on or use of the Property inconsistent with the purposes of this Easement is prohibited. Without limiting the generality of the foregoing, the following activities and uses are expressly prohibited: A. The change, disturbance, alteration, or impairment of the relatively natural habitat for plants, wildlife, or similar ecosystems within and upon the Property. B. The construction, placement, reconstruction or replacement of any buildings, structures, camping accommodations, mobile homes, boat ramps, or billboards; C. The conveyance or expansion of easements or rights-of-way on the Property, the paving or grading of any new or expanded trails or roadways on the Property, or the construction of any new or expanded trails or roadways on the Property; D. The removal, destruction, or cutting of native vegetation; E. The introduction of non-native plant or animal species; F. The grazing of livestock; G. The use of pesticides or fertilizers other than for the control of noxmus weeds and/or pests in a manner consistent with sound environmental conservation practices: H. The exploration for or extraction of minerals, oil, gas, or other hydrocarbons, soils, sands, gravel, rock, or other materials on or below the surface of the Property. Grantor shall not transfer, lease or otherwise separate the soil, sand, giavel, rock, oil, natural gas, fuel or any other mineral substance from the Property; I. The division, subdivision, or de facto subdivision of the Property into two or more parcels of land; J. The use of any motorized vehicles off roadways now existing; K. The establishment or maintenance of any commercial feed lot, which shall be defined for purposes of this Conservation Easement as a permanently constructed confined area or facility within which the land is not grazed or cropped annually, for purposes of engaging in the business of the reception and extended feeding and finishing of large numbers of livestock for hire; L. The accumulation, dumping or other disposal of trash, ashes, garbage, or other offensive or unsightly refuse on the Property; M. The manipulation, diversion, or other alteration of streams that degrades or destabilizes their natural banks or shorelines; 533153.1 3 N. The degradation, pollution, or drainage of any surface or sub-surface water; O. Any change in the topography of the Property through the placement therein of soil, land fill, dredging spoils, or other material; P. Any commercial or industrial activity; Q. The erection, construction, installation, relocation or use of a communication facility, a telecommunication facility, a network element or any other telecommunication facilities, eqmpment or material that may be used for telecommunications or to provide such services; R. Utility lines or substations not necessary and directly related to uses of the Property permitted by this Easement; S. Wind-powered electric generators to produce electricity for off-site use; T. Hunting and trapping on the Property ~s expressly prohibited. 5. Consistent Uses of the Property. The following uses and practices by Grantor. though not an exhaustive recital, are consistent with this Easement. Certain of these consistent uses and practices are identified as being subject to specified conditions, to the notice provision as described in paragraph 7, and/or to the requirement of and procedures for prior approval by the Trust as described in paragraph 8: The natural gas utility easement set forth as Exhibit C attached hereto, and the terms and conditions contained therein; and, the pedestrian trails currently located on the Property, in their current size, location and configuration. Both of these uses are hereby approved by the Trust without any further action, provided the natural gas utility easement is as set forth on Exhibit C. 6. Reserved Rights, Grantor reserves to itself and to its successors and assigns, all rights accruing from their ownership of the Property, including the right to engage in all uses of the Property that are not inconsistent with the purposes of this Easement. Grantor shall notify the Trust in writing, as described in paragraph 7, before exercising reserved rights that might have an adverse impact on the Conservation Values. Grantee acknowledges that a Utility Easement appended hereto as Exhibit C currently burdens the property. The Grantee of that utility easement has certain rights to access the property for purposes set forth in the utility easement. Ail notice requirements set forth in this Conservation Easement shall not apply to the Grantee of the Utility Easement described at Exhibit C. 7. Notice of Intention to Undertake Certain Permitted Actions. The purpos~ of requiring Grantor to notify the Trust before undertaking certmn permitted activities is ro afford the Trust an opportunity to ensure that the activities in question are designed and carried out in a manner consistent with the purposes of this Easement. Whenever notice is 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, unless a different time period for the giving of notice is 533153 4 provided as to the activity in question. The notice shall describe the nature, scope, design, location, timetable, and any other material aspect of the proposed activity in sufficien~ detail to permit the Trust to make an informed judgment as to its consistency with the purposes of this Easement and the Conservation Values. 8. The Trust's Approval. Whenever this Easement requires that Grantor obtain the Trust's approval of any activity on or use of the Property, such approval shall not be unreasonably withheld or delayed. Where the Trust's approval is required, the Trust shall grant or withhold its approval in writing within 30 days of receipt of Grantor's written request therefore. The Trust's approval may be withheld only upon a reasonable determination by the Trust that the action as proposed would be inconsistent with the Conservation Values or the purposes or terms of this Easement; the reason(s) for such a determination shall be set forth with specificity by the Trust in a written notice to Grantor. Where a reasonable modification of the proposed use or activity by Grantor would render the same consistent with the purposes of this Easement and the Conservation Values, the Trust shall specify, in such written notice to Grantor. such required modifications. 9. Trust's Remedies: Enforcement. 9. i Notice of Violation: Corrective Action. If the Trust determines that a violation of the terms of this Easement has occurred or is threatened, the Trust shall give written notice to Grantor of such violation and demand corrective action sufficient to cure the violation and, where the violation involves injury to the Property resulting from any use or activity inconsistent with the purposes of this Easement or the Conservation Values, to restore the portion of the Property so ~njured to its prior condition m accordance with a plan approved by The Trust. Grantor intends that if any prohibited activity is undertaken on the Property, the Trust shall have the right to cause restoration of that portion of the Property affected by the prohibited activity to the condition that existed before the prohibited activity commenced. Grantor shall bear the costs of any such restoration. 9.2. Iniunctive Relief. If Grantor fails to cure the violation within ten (10) days after receipt of notice of the violation from the Trust, or under circumstances where the violation cannot reasonably be cured within a ten (10) day period, falls to begin curing such violation within the ten (10) day period or fails to continue diligently to cure such violation until finally cured, the Trust may bring an action at law or in equity in a court of competent jurisdiction to enforce the terms of this Easement, to enjoin the violation, ex parte as necessary, by temporary or permanent injunction, and to require or cause the restoration of the Property to the condition that existed prior to any such injury. 9.3. Damages. The Trust shall be entitled to recover damages for violation of the terms of this Easement or injury to the Conservation Values, including, without limitation, damages for the loss of scenic, aesthetic, or environmental values. Without limiting Grantor's liability therefore, the Trust, in its sole discretion, may apply any damages recovered to the cost of undertaking any corrective action on the Property. 9.4. Emergency Enforcement. If the Trust, reasonably believes an ongoing or threatened imminent activity violates the Easement, the Trust may, in its sole discretion, take 533153.1 5 immediate legal action as set forth in this section 9 without prior notice to Grantor and without witting for the period provided for cure to expire. 9.5. Scope of Relief. The Trust's rights under this section 9 apply equally in the event of either actual or threatened violations of the terms of this Easement. Grantor agrees that the Trust's remedies at law for any violation of the terms of this Easement are inadequate and that the Trust shall be entitled to the injunctive relief described in Section 9.2, both prohibitive and mandatory, in addition to such other relief to which the Trust may be entitled, including specific performance of the terms of this Easement, without the necessity of prov,ng either actual damages or the inadequacy of otherwise available legal remedies. The Trust's remedies described in this section 9 shall be cumulative and shall be in addition ro ali remedies now or hereafter existing at law or in equity. 9.6. Costs of Enforcement. All reasonable costs incurred by the Trust in enforcing the terms of this Easement against Grantor including, without limitation, costs and expenses of suit and reasonable attorney's fees. and any costs of restoration necessitated by Grantor's violation of the terms of this Easement shall be borne by Grantor; provided, however, that if Grantor ultimately prevails in a judicial enforcement action each parry shall bear its o~vn costs. 9.7. The Trust's Discretion. 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 in the event of any breach of any term of this Easement by Grantor shall not be deemed or construed to be a waiver by the Trust of such term or any subsequent breach of the same or any other term of this Easement or of any of the Trust's rights under this Easement. No delay or omission by the Trust in the exercise of any right or remedy upon any breach by Grantor shall impair such right or remedy or be construed as a waiver. 9.8. Waiver of Certain Defenses. No action shall be commenced or maintained to enforce the terms of any building restriction described in this Easement. or .to compel the removal of any building or Improvement. unless said action is commenced within four (4) years from the date of the violation for which the action is sought to be brought or maintained. To the extent that any defense available to Grantor pursuant to C.R.S. Section 38-41-119 is inconsistent with the foregoing, such defense is waived by Grantor. Grantor waives the defenses of laches, estoppel and prescription with regard to the enforcement of all other terms of this Easement. 9.9. 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 including, without limitation, fire, flood, storm, and earth movement, or from any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury m the Property resulting from such causes. 10. Access. Nothing contained herein shall be construed as affording the public access to any portion of the Property, although the Grantor may permit public access to the Property on such terms and conditions as it deems appropriate, provided that such access is consistent with the terms of this Easement. 533153.1 6 11. Costs. Liabilities, Taxes and Environmental Compliance. 11.1 Costs, Legal Requirements and Liabilities. Grantor retains ail responsibilities and shall bear all costs and liabilities of any kind related ro the ownership, operation, upkeep, and maintenance of the Property, including the maintenance of adequate liability insurance coverage, which names the Trust as an additional insured. Grantor remains solely responsible for obtaining any applicable governmental permits and approvals for any construction or other activity or use permitted by this Easement, and all such construction or other activity or use shall be undertaken in accordance with all applicable federal, state, and local laws, regulations and requirements. Grantor shall keep the Property free of any liens arising out of any work performed for, materials furnished to, or obligations incurred by Grantor. [1.2. Taxes. Grantor shall pay before delinquency all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Property by competent authority (collectively "Taxes"), including any Taxes imposed upon, or incurred as a result of, this Easement, and shall furnish the Trust with satisfactory evidence of payment upon request. The Trust is authorized, but in no event obligated, to make or advance any payment of Taxes, upon ten (10) days prior written notice to Grantor, in accordance with any bill, statement, or estimate procured from the appropriate authority, without inqmry ~nto the validity of the Taxes or the accuracy of the bill, statemem, or estimate, and the obligation created by such payment shall bear interest until paid by Grantor to the Trust at the lesser of fifteen percent (15%) per annum, or the maximum rate allowed by law. [1.3. Representations and Warranties. Grantor represents and warrants that, after reasonable investigation and to the best of its knowledge: (a) No substance defined, listed, or otherwise classified pursuam to any federal, stare, or local law, regulation, or reqmremen~ as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or ~n any way harmful or threatening to human health or the environment exists or has been released, generated, treated, stored, used. disposed of, deposited, abandoned, or transported in, on, from, or across the Property, except for fuels customarily used or transported in connection with camping, wrangling, agricultural and construction activities on the Proper[y; (b) There are not now any underground storage tanks located on the Property, whether presently in service or closed, abandoned, or decommissioned, and no underground storage tanks have been removed from the Property in a manner not in compliance with applicable federal, state, and local laws, regulations, and reqmrements; (c) Grantor and the Property are in compliance with all federal, state~ and local laws, regulations, and requirements applicable to the Property and its use; (d) There is no pending or threatened litigation in any way affecting, involving, or relating to the Property; and (e) No civil or criminal proceedings or investigations have been instigated at any time or are now pending, and no notices, claims, demands, or orders have been received, arising out of any violation or alleged violation of. or failure to comply with, 533153.1 7 any federal, state, or local law, regulation, or requirement applicable to the Property or its use, nor do there exist any facts or circumstances that Grantor might reasonably expect to form the basis for any such proceedings, investigations, notices, claims, demands, or orders. (f) Grantor warrants that Grantor has good and sufficient title to the Property, that Grantors has good right, full power and lawful authority to grant and convey this Easement, that any mortgages or liens on the Property are and shall remain subordinate to the terms of this Easement, and Grantor hereby promises to 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, which are acceptable to the Trust at the time of execution of the Easement. 11.4 Remediation. If, at any time, there occurs, or has occurred, a release in, on, or about the Property of any substance now or hereafter defined~ listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or reqmrement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil. or in any way harmful or threatening to human health or the envtronment, Grantor agrees to take all steps necessary to assure its containment and remediation, including any cleanup that may be required, unless the release was caused by the Trust, in which case the Trust shall be responsible therefor. 11.5. Control Nothing in this Grant shall be construed as givin~ rise, in the absence of a judicial decree, to any right or ability in The Trust to exemlse physical or managerial control over the day-to-day operations of the Property, or 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. 11.6. Hold Harmless. To the extent permitted by law, Grantor shall hold harmless, indemnify, and defend the Trust and its members, directors, officers, employees, agents, and contractors and the heirs, personal representatives, successors, and assigns of each of them (collectively "Indemnified Parties") from and agains! all liabilities, penalties, costs, losses, damages, expenses, cause of action, claims, demands, or judgments, including, without limitation, reasonable attorneys' fees, 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 ro or occurring on or about the Property, regardless of cause, unless due solely to the negligence of any of the Indemnified Parties; (2) the violation or alleged violation of, or other failure to comply with, any state, federal, or local law, regulation, or requirement, including, without limitation, CERCLA, by any person other than any of the Indemnified Parties, in any way affecting, involving, or relating to the Property; (3) the presence or release of hazardous or toxic substances in, on, from, under or about the Property at any time, of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment, unless caused solely by any of the Indemnified Parties; and (4) the obligations, covenants, representations, and warranties of paragraphs 11.1 through 11.5. 533153.1 8 12. Extinguishment and Condemnation. 12.1. Extin~uishmem. In granting this Easement, Grantor has considered the possibility that uses prohibited by the terms of this Easement may become more economically valuable than permitted uses and that neighboring properties may be used entirely for such prohibited uses in the furore. It is the intent of the Grantor and the Trust that any such changes shall not be deemed circumstances justifying the termination or extinguishment of this Easement. In addition, the inability of Grantor, or the Grantor's heirs, successors or assigns, to conduct or implement any or all of the uses permitted under this Easement, or the unprofitability of doing so, shall not impair the validity of this Easement or be considered grounds for its termination or extinguishment. If circumstances arise in the future that render the purposes of this Easement impossible to accomplish, this Easement can only be terminated or extinguished, whether in whole or in pan, by judicial proceedings in a court of competem jurisdiction. Each party shall promptly notify the other 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 or extinguishment, shall be determined, unless otherwise provided by Colorado law at the time, in accordance with the Proceeds paragraph, below. The Trust shall use all such proceeds in a manner consistent with the conservation purposes of this Easement. '12.2. Proceeds. This Easement constitutes a real property interest immediately vested in the Trust. which the parties stipulate to have a fair market value determined by multiplying the fair market value of the Property unencumbered by this Easement (based on a 1998 appraisal by Aspen Appraisal Office acquired by Holy Cross-copy given to the Trust) by the ratio of the value of this Easement at the time of this grant to the value of the Property, without deduction for the value of this Easement. at the time of this grant. For the purposes of this paragraph, the ratio of the value of this Easement to the value of the Property unencumbered by this Easement shall remain constant. 12.3. Condemnation. If all or any part of the Property is taken by exercise of the power of eminent domain or acquired by purchase in lieu of condemnation, whether by public, corporate, or other authority, so as to terminate this Easement, in whole or in pan, 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 direct or incidental damages resulting therefrom. All expenses reasonably incurred by Grantor and the Trust in cormection 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 multiplying that balance by the ratio set forth in section 12.2. In no event shall Grantor. being an entity with condemnation authority, be allowed to bring an action to condemn the Property, or any portion thereof, the net effect of which would be to terminate this Conservation Easement. Any attempt by Grantor to condemn the Property or any portion thereof shall be null and void, unless Grantor agrees, as part of the condemnation proceedings, that this Conservation Easement will survive such condemnation. This provision may be enforced by the Trust in any court of competent jurisdiction and Grantor shall be liable to the Trust for any and all costs and attorneys fees incurred in any such enforcement action. 533153.1 9 12.4. Application of Proceeds. The Trust shall use any proceeds received under the circumstances described in this secnon 12 in a manner consistent with its conservation purposes, which are exemplified by this grant. 13. Assignment. This Easement is transferable, but the Trust may assign its rights and obligations under this Easement only m an organization that is (a) 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;(b) authorized to acqmre and hold conservation easements under Colorado law; and (c) is approved by the Grantor, whose approval shall not be unreasonably withheld. As a condition of such transfer, the Trust shall require the transferee to expressly agree, in writing, to carry out and uphold the purposes of this Easement and the Conservation Values and otherwise assume all of the obligations and liabilities of the Trust set forth herein or created hereby. After such transfer, the Trust shall have no further obligation or liability under this Easement. The Trust agrees to give written notice to Grantor of an assignment at least 60 days prior to the date of such ass~gnmem. The failure of the Trust to give such notice shall not affect the validity of such assignment nor shall it impair the validity of this Easement or limit its enforceability in any way. 14. Subsequent Transfers. Grantor agrees to incorporate the terms of this Easement in any deed or other legal instrument by which it divests itself of any interest in the Property, including, without limitation, a leasehold interest. Grantor further agrees to give written notice to the Trust of the transfer of any such interest at least 30 days prior to the date of such transfer. 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. 15. Estoppel Certificates. Upon request by Grantor, The Trust shall within 30 days execute and deliver to Grantor, or to any party designated by Grantor, any document, including an estoppel certificate, which certifies, to the best of the Trust's knowledge, Grantor's compliance with any obligation of Grantor contained in this Easement or other~vise evidences the status of this Easement. Such certification shall be limited to the condition of the Property as of the Trust's most recent inspection. If Grantor requests more current documentation, the Trust shall conduct an inspection, at Grantor's expense, within 60 days' of receipt of Grantor's written request therefor. However, m the event that weather, or other circumstances outside of the Trust's control, prevent the Trust from conducting an inspection within 60 days of receipt of Grantor's written request, the Trust shall conduct such inspection within a timely manner once such weather or circumstances that prevent the inspection no longer exist. 16. Notices Any notice, demand, request, consem, approval, or communication that either parry desires or is required to give to the other shall be in writing and either served personally or sent by first class mail, postage prepaid, addressed as follows or to such other address as either party from time to time shall designate by written notice to the other: To Grantor: City Manager City of Aspen 130 S. Galena St. Aspen, CO 81611 10 To the Trust: Aspen Valley Land Trust 320 Main Street, Suite 204 Carbondale, CO 81623 17. Recordation. The Trust shall record this instrument in timely fashion 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. 18. Amendment. If cimumstances arise under which an amendment to or modification of this Easement would be appropriate to promote the purposes of this Easement and the protection of the Conservation Values of the Property, Grantor and the Trust may jointly amend this Easement (in accordance with the Policies of the Trust.) However, the Trust is under no obligation to amend this Easement, and may decline to amend this Easement in its sole and exclusive judgmem. No amendment shall be allowed that will affect the qualifications of this Easement under any applicable law. Any amendment must be consistent with the purposes of this Easement and the Conservation Values and may not affect the Easement's perpetua] duration. Any amendment must be in writing, signed by both parties, and recorded in the records of the Clerk and Recorder of Pitkin County, Colorado. 19. Subordination. At the time of conveyance of this Easement, the Property is subject to a deed of trust, the holder of which has agreed by separate instrument, a copy of which is attached hereto as Exhibit D to subordinate its rights in the Property to the extent necessary to permit the Trust m enforce the purposes of this Easement in perpetuity and to prevent any modification or extinguishment of this Easement by the exercise of any rights of the deed of trust holder. 20. General Provisions. 20.1. Exhibits. All Exhibits referenced herein are attached hereto and shall by incorporated herein by reference. 20.2. Definitions. The terms "Grantor" and the "Trust", wherever used herein, and any pronouns used in place of those terms, shall be deemed to include, respectively, Grantor and its heirs, personal representatives, executors, administrators, successors and assigns, and the Trust, its successors and assigns. 20.3. Controlling Law. The interpretation and performance of this Easement shall be governed by the laws of the State of Colorado. 20.4. Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Easement shall be liberally construed in favor of the grant to effect the purposes of this Easement and the policy and purpose of C.R.S. 38-30.5-101 et seq. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the purposes of this 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 reai property and construing restrictions in favor of the free and unrestricted use of real property shall not apply to interpretations of this Easemem or to disputes between the Parties concermng the meaning of particular provisions of this Easemem. 20.5. Severability. If any provision of this Easement, or the application thereof to any person or circumstance, is found to be invalid, the remainder of the provisions of this Easement, or the application of such provision to persons or circumstances other than those as to which it is found to be invalid, as the case may be, shall be deemed severable and remain in full force and effect. 20.6. Entire Agreement. This instrumem sets forth the entire agreement between the Parties with respecl ro this Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to this Easement, all of which are merged herein. 20.7. No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Grantor's title in any respect. 20.8 Joint Obligation. The obligations imposed by this Easement upon Grantor shall be joint and several (in the event that there is more than one Grantor). 20.9. Successors. The covenants, terms, conditions, and restrictions of this Easement shall be binding upon, and inure to the benefit of, the Parties hereto and their respective personal representatives, heirs, successors, and assigns and shall continue as a servitude rmming in perpetuity with the Property. 20.10. Termination of Rights and Obl~gations. A party's rights and obligations under this Easement terminate upon transfer of the party's interest in this Easement or the Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer. 20.11. Captions. The captions m this insrrumem have been inserted solely for convenience of reference and are not a pan of this instrument and shall have no effect upon construction or interpretation. 20.12. Counterparts. The Parties may execute this instrumenl in two or more counterparts, which shall, in the aggregate, be signed by both 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 coumerpart shall be controlling. 1N WITNESS WHEREOF, Grantor and the Trust have executed this Deed of Conservation Easement as of the date first written above. GRANTOR The City of ~}p~/ STATE Or dOl* r~do ~ ~ I SS. cowry OF 'd, ~; ~ The foregoing instrument was ac~owledged,be~e me this 2 2 ~dday of WITNESS my hand and official seal. My commlss~on expires: /J~ff ACCEPTED: TRUST ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation, Martha Cochran Its: Executive Director 5331s3.1 13 a'4} SS. COUNTY OF Tho foregoing instrument was acknow. IeAged before me this / 7%ay of ~ ~. ~ o_r-~. ,2002, by ~r)rL~i-~'~ ~r (~3,~- ~'~-~'--~k_~ as Executive ~tor of ASP~ VALLEY LAND T~OS~. a Colo~d$~4~profit co.oration. WI~ESSmyh~d~d°fficialseM' ~ ~ ~/ [SEAL] ~ f~P:?~ Ndt~y Public d , . / " ~~::) My co~ission expires: / ~/~7/~ JPW-Janu~ 15, 2003-G: johnkwordX~l~conservauone~emenb7*25-02.doc ~ ~' ' COMMISSION ~PIRES: C *;TOBER 27, 8.2002 EXHIBIT "A" LEGAL DESCRIPTION That ~ortion of the NEI/4SWII4 of Section 12, Township 10 South, Range 85 West of the 5th P.M,. described as follows; Commencing et Corner No. 1 from which [he West quarter corner of said Section 12 bears N 80"I2'48" W 1732.95 feet, being aisc a point which bears N 81~9' E 4,28 feet from Corner No. 3 of the Holden Tract; thence S 75°49` E 139.84 feet to Corner No, 2; thence N 04°11' E 288.38 feet to Corner No. 3; thence N ?5°49, W 89.56 feet to Corner No. 4: thence S 14°11' W 284.00 feet to the point of beginning. EXHIBIT C UTILITY EASEMENT (City as Grantor) THIS GRANT OF TRAIL EASEMENT is made and entered into this day of , 2003, by and between the City of Aspen. Colorado, a municipal corporation (hereinafter referred to as "Grantor"), and Kinder Morgan, Inc. (hereinafter referred m as "Grantee"). WlTNESSETH: WHEREAS, Grantor is the owner of certain real property (the "Property") situated in the City of Aspen. Pitkin County, Colorado, as more fully described in Exhibit A appended hereto and by this reference incorporated herein. And, WHEREAS, Grantee desires to obtain an easement under a portion of the Property for the purpose of installing and maintaining a gas line together with the right of access to the same. NOW. THEREFORE, Grantee. for the sum of Ten and no/100 dollars ($10.00) and other valuable consideration, the receipt and adequacy of which is hereby acknowledged by Grantor. Grantor does hereby grant and convey to Grantee without covenants or warranties of any kind, and subject to the terms and conditions hereinafter set forth and the rights herein specifically retained and reserved by Grantor, the right, privilege and easement to construct. install, maintain, operate, repair, remove and replace underground utility lines, underground pipes and similar underground accessories m the Easement Premises situated on the Property as described and depicted on Exhibit A attached hereto and incorporated herein by reference. Further, Grantor does grant to Grantee the right to access said Property over, under, across and along the Easement Premises as may reasonably be required for the purpose of exercising the rights, privileges and easement herein granted. The foregoing grant of easement and access shall be subject to the following terms, and condkions: 1. The Easement Premises shall not exceed the area described in Exhibit A. 2. Grantee's utilities and all associated facilities shall be constructed, installed, maintained and operated in a safe and workmanlike manner and in such a manner as tc avoid damage to or destruction of Grantor's property or trees. shrubs and other vegetation on the Property. Any damage to the Grantor's property or to the surface, trees, shrubs or other vegetation caused by Grantee's installation, maintenance, repair or removal the pipeline or attendant facilities. shall be repaired or replaced by Grantee to the satisfaction of Grantor, and the Aspen Valley Land Trust. or its successors or assigns, pursuant re the Deed of Conservation Easement in Gross dated ,2003 and recorded in the Pitkin County real property records on ,2003 under reception number . Grantee further agrees ro restore at its sole cost the former conditions of usefulness and appearance of the Easement Property that may be disturbed or interfered with by the construction, installation. maintenance, operation, repair, removal or replacement of any underground utility lines, underground pipelines, and attendant underground facilities. 3. Grantee shall not place, keep, store or otherwise permit any equipment or materials on the Easement Premises except during such times as Grantee's employees or agems are physically present and conducting activities permitted under this Easement. 4. It is expressly understood and agreed that the grant of easement as herein provided and Grantee's use of the Easement Premises shall at all times be subordinate to the Grantor's use of the Property and should any relocation or removal of the underground utilities, underground pipeline and/or attendant underground facilities be necessitated in Grantor's discretion ar any time in the future as a result of Grantor's use of the Property, then such removal or relocation shall be permitted at Grantor's expense. In such event, Grantor will provide additional easements over and/or under the Property m Grantee where practicable. Should any relocation or removal of the underground utilities. underground pipeline and/or attendant underground facilities be necessitated. Grantor shall provide Grantee with a minimum of 30 days prior written notice. 5 This Easement is not intended and shall not be construed to grant an easement or access across, over or under any property or premises other than the Easement Premises as described and depicted herein. 6. This Easement shall continue only so long as Grantee shall use the Easement Premises for the purposes described and it shalI mediately lapse and terminate upon cessation or alteration of such use. Additionally, the rights granted hereunder to Grantee shall lapse should the underground utilities, underground pipeline and attendant underground facilities not be constructed and installed within 36 months from the date of this agreement. 7. The Easement granted hereunder shall be perpetual except that it shall automatically terminate should Grantee or any of its successors or assigns violate the terms and conditions contained herein. 8. Ali rights, benefits and privileges granted, created or reserved herein, and all impositions and obligations unposed hereunder, shall inure to the benefit of and be binding upon the parties, their successors and assign. 9. Any right m the Property or Easement Premises nor specifically granted ro Grantee herein are reserved to the Grantor, its successors or assigns. IN WITNESS WHEREOF, the Grantor has affixed its duly authorized signature this __ day of .2003. The City of Aspen, a Home Rule Municipality By: Title: Kinder Morgan, Inc. By: Tkle: STATE OF COLORADO ) ) SS. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this day of ,2003, by , as of The City of Aspen, a Home Rule Municipality. WITNESS MY HAND AND OFFICIAL SEAL. My commission expires: Notary Public STATE OF COLORADO ) ) SS. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this day of ,2003, by , as of Kinder Morgan, Inc. WITNESS MY HAND AND OFFICIAL SEAL. My commission expires: Notary Public