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HomeMy WebLinkAboutresolution.council.048-03RESOLUTION N©. ~ Series of 2003 A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING A CERTAIN CONTRACT TO BUY AND SELL REAL ESTATE (AMCORD PARCEL FROM THE ASPEN VALLEY LAND TRUST) AND AUTHORIZING THE MAYOR OR CITY MANAGER TO EXECUTE, ON BEHALF OF THE CITY OF ASPEN, CERTAIN CONSERVATION EASEMENTS REFERENCED IN THE CONTRACT. WHEREAS, there has been submitted to the City Council a proposed Contract to Buy and Sell Real Estate relating to the Amcord parcel between the City of Aspen and the Aspen Valley Land Trust; and WHEREAS, after due deliberation and consideration the City Council has determined that it is in the best interest of the City of Aspen to approve said contract and authorize the Mayor or the City Manager to execute same on behalf of the City of Aspen. NOW, WHEREFORE, BE 1T RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, that the Contract to Buy and Sell Real Estate between the City of ASPen and the Aspen Valley Land Trust appended hereto as Exhibit A is hereby approved and the Mayor or City Manager are hereby authorized to execute the conservation easements appended to and referenced within the Contract to Buy and Sell Real Estate in substantially the form as appended Dated: thereto. Hel 'en' ~n ~and~ ayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a tree and accurate.copy of that resolution adopted by the City Council of the City of Aspen, Colorado. at a meeting held ~.--~-~zT---- ,2003. ~athryn S. K?fifi, C~ty Clerk JPW-05 20/2003-G: john\word resos avlt-amcord.doc QUITCLAIM DEED THIS DEED, dated June 30, 2003, between ASPEN VALLEY LAND TRUST, f/k/a PAP, K TRUST, LTD., a nonprofit corporation duly organized and existing under and by virtue of the laws of the State of Colorado, grantor, and City of Aspen, a home rule municipal corporation duty organized and existing under and by virtue of the laws of the State of Colorado, grantee, whose legal address is c/o Office of the City Manager, 130 S. Galena Street, Aspen, CO 81611 WITNESS, that the grantor, for and in consideration of the sum of Ten Dollars and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, has remised, released, sold and QUITCLAIMED, and by these presents does remise, release, sell and QUITCLAIM unto the grantee, its successors and assigns forever, all the right, title, interest, claim and demand which the grantor has in and to the real property, together with improvements, if any, situate, lying and being in the County of Pitkin and State of Colorado, described as follows: Lot 5, Section 2, T10S, R85W, 6th, P.M. EXCEPTING THEREFROM: A parcel of land described in Warranty Deed recorded July 1, 1981 in Book 410 at Page 767 of the Pitkin County real property records and FURTHER EXCEPTING THEREFROM, A parcel of land described in Quit Claim Deed recorded April 23, 2003 under Reception Number 466499 of the Pitkin County real property records. TO HAVE AND TO HOLD the same, together with all and singular the appurtenances and privileges thereunto belonging, or in anywise thereunto appertaining, and all the estate, right, title, interest and claim whatsoever of the grantor, either in law or equity, to the only proper use, benefit and behoof of the grantee, its successors and assigns forever. IN WITNESS WHEREOF, the grantor has caused its corporate name to be hereunto subscribed by its Executive Director, and its corporate seal to be hereunto affixed, the day and year first above written. ASPEN VALLEY LAND TRUST, f/k/a PARK TRUST, LTD., a Colorado nonprofit corporation Ma~th~ ~o~hran, Executive Director STATE OF COLORADO County of Pitkin The foregoing instrument was acknowledged before me this 304 day of June 2003, by Martha Cochran, as Executive Director of ASPEN VALLEY LAND TRUST, f/k/a PARK TRUST, LTD., a Colorado nonprofit corporation. Witness my hand and official seal. My commission expires: Bmndi L Jepson / Notary Public My Commission Expires 1/22/2005 601 E. Hopkins Aspen, CO 81611 Notary Public No. 825. Rev. 4-94. QUITCLAIM DEED RETURN TO: CiTY OF ASPEN : ,JOH. N'WORC ESTER Page: 1 of 1 06/30/2003 12:52P SILVIA DAVIS PITKIN COUNTY CO R 6.00 D 0.00 QUITCLAIM DEED THIS DEED, dated June 30, 2003, between ASPEN VALLEY LAND TRUST, f/Ida PARK TRUST, LTD., a nonprofit corporation duly organized and existing under and by virtue of the laws of the State of Colorado, grantor, and City of Aspen, a home role municipal corporation duly organized and existing under and by virtue of the laws of the State of Colorado, grantee, whose legal address is c/o Office of the City Manager, 130 S~ Galena Street, Aspen, CO 81611 WITNESS, that the grantor, for and in consideration of the sum of Ten Dollars and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, has remised, released, sold and QUITCLAIMED, and by these presents does remise, release, sell and QUITCLAIM unto the grantee, its successors and assigns forever, all the right, title, interest, claim and demand which the grantor has in and to the following described water rights: All water and water rights, whether tributary, non-tributary, whether adjudicated or unadjudicated, and all ditches and ditch rights, water wells and well rights, State Engineer filings, well registration statements and well permits, water taps, reservoirs and reservoir rights, which are, or have been or may be used on or in connection with, or are appurtenant to, or located on or underlying, or in any w.a~y associated with the following property described as Lot 5, Section 2, T10S, R85W, 6 , P.M., EXCEPTiNG THEREFROM: A parcel of land described in Warranty Deed recorded July 1, 1981 in Book 410 at Page 767 of the Pitkin County real property records and FURTHER EXCEPTiNG THEREFROM, A parcel of land described in Quit Claim Deed recorded April 23, 2003 under Reception Number 466499 of the Pitkin County real property records. TO HAVE AND TO HOLD the same, together with all and singular the appurtenances and privileges thereunto belonging, or in anywise thereunto appertaining, and all the estate, right, title, interest and claim whatsoever of the grantor, either in law or equity, to the only proper use, benefit and behoof of the grantee, its successors and assigns forever. IN WITNESS WHEREOF, the grantor has caused its corporate name to be hereunto subscribed by its Executive Director, and its corporate seal to be hereunto affixed, the day and year first above written. ASPEN VALLEY LAND TRUST, f/k/a PARK TRUST, LTD., a Colorado nonprofit corporation STATE OF COLORADO County of Pitkin The foregoing instrument was acknowledged before me this 30m day of June 2003, by Martha Cochran, as Executive Director of ASPEN VALLEY LAND TRUST, f/k/a PARK TRUST, LTD.= a Colorado nonprofit corporation. Witness my hand and official seal. My commission expir .e~o My Commission Expires 112212005 601 E. Hopkins Aspen, CO 81611 Notary Public No. 825. Rev. 4-94. QUITCLAIM DEED RETURN TO: C;TY OF ASPEN JOHN WORCESTER DEED OF CONSERVATION EASEMENT IN GROSS Cozy Point Ranch, Aspen THIS DEED OF CONSERVATION EASEMENT is granted this "_-day of M"y,-2003, by the CITY OF ASPEN ("Grantor"), to and for the benefit of ASPEN VALLEY LAND TRUST, a Colorado nonprofit.corporation, 320 Main Street, Suite 204, Carbondale, Colorado 81623, (the 'Tr~ st")(collect~ve y, t ~e "Parties"). RECITALS WHEREAS, Grantor is the sole owner in fee simple of certain real property in P. itkin County, State of Colorado, m~re particularly described in 'Exhibit A (the "Property"). ' "['he Property is comprised of. approximately 168 acres of land commonly known Cozy Point Ranch, and WHEREAS, the Property possesses natural, scenic, open space, and recreational values (collectively, "Conservation Values") of importance to the Trust, the people of Pitkin_County, and the people of the State of Colorado that are worthy of preservation; and WHEREAS, 'in particular, the Property is a historic ranch established hq 1890 and is currently a working equestrian center and ranch w/th ope~u space, highly visible from Highway 82, and which also provides habitat for deer, elk, birds and other wildlife, and is bisected by Brush Creek through the northern portion of the property; and WHEREAs, the City of Aspen has managed the property as a working equestrian ranch and has undertaken efforts to restore the creek-side habitat and elk and deer habitat in portions of the ranch; and WHER~A.S, the specific Conservation Values of the Property are documen, ted in an inventory of relevant features of the Property, on file at the office of the Trust, (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 WHERE, Ks, Grantor intends that the Conservation Values of the Property be preserved and maintained 'by the continuation of land use patterns, including, without limitation, those relating to open space, wildlife habitat and recreational uses existing at the time of ihis grant, including the equestrian center and related employee housing, agricultural structures' and equestrian facilities, which the Trust acknowledges and ~grees do not significantly impair or interfere with tho se values; and · WHERE.~$, Grantor intends, as owner of the Property, to convey to the Trust the ri~Jht to preserve and protect the Conservation Values of the Property in perpetuity; and 533153.1 RETUFRN TO: AUTSI IN PE RCE AND SMITH FRED PEIRCE 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 char/table organization as described in Section 501(c)(3)' of tt~e 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 is to preserve and protect the natural, scenic, agricultural, histofical, 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 Secfion 170(h)(3) of the Code; and 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 ~,xecution and acceptance of Grantor's gift of this Conservation Easement/ NOw, THEREFORE, in consideration of the above and the mutual Covenants, terms, conditions, and restrictions contained herein, and pursuant to the laws o~'.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 righ[s 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 predominantly in its open space, natural habitat and agricultural condition subject to the uses of the Property permitted hereunder, and to prevent any use of the Property that will significantly impair or interfere with the Conservation Values of the Property and, in the event of their 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 limitation, those involving agriculture, conservation education, and general conservation purposes, as are consistent 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 P ' ' ' Documentation of the . _ art~es acknowledge that Baseline ?roperty will be prepared by September 1, 2003, by a person familiar with Conservation Easements and the property 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 D~cumentation is on file with the Trust. 3. Rights of Trust. To accomplish the purposes of this Easement, Grantor convey~ the following fights to the Trust: · 533153.1 g.1. The right to preserve and protect the Conservation Values of the Property.in perpetuity; and 3.2. The right to enter ppon 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 fight to p~:event 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 3.4. Any other fights that the Parties may approve consistent with the purposes of this' Easement an.d the Conservation V. alues. ' 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 agricultural' values within and upon the Property, except as provided herein. ' B. The construction, placement, reconstruction or replacement of any buildings, structures, camping accommodations, mobile homes, boat ramps, or billboards, except as expressly provided herein. C. The conveyance of easements, rights-of-ways, the paving or grading of roadways, or the construction of any roadways without the consent of the Trust, which consent shall be in the Trust~ sole discretion. . D. The removal, destruction, or cutting of native vegetation; E. The introduction of non-native plant or animal species except for commonly acceptable agricultural species; F. The use of pesticides or fertilizers other than for the control of noxious weeds and/or pests in a manner consistent with sound environmental conservation practices; · G~ The exploration for or extraction of minerals, oil, gas, or other hydrr~carbons, soils, sands, gravel, rock, or other materials on or below the' surface of the Property Grantor s~aall not transfer, lease or otherwise separate the soil, sandl gravel, rock, 'oil, natural gas, fuel or a. ny other mineral substance from the Property; 533153.1 H. The division, subdivision, or de facto subdivision of the 'Property into two or more parcels of land; I. The use of any motorized vehicles off roadways now ex~sting or new roadways permitted herein, except for agricultural uses; J. 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; K. The accumulation, dumping or other disposal of trash, ashes, garbage, or other offensive or unsightly refuse on the Property; L. The manipulation, diversion, or other alteration of streams that degrades or destabilizes their natural banks or shorelines; "M. The degradation, pollution, or drainage of any surface or sub-sm:face water; N. Any change in the topography of the Property through the placement therein of soiI, land fill, dredging spoils, or other material, except as incidental and necessary to the activities permitted herein; O. Any commercial or industrial non-agricultural uses; P. To transfer, encumber, lease, sell, or otherwise separate the Water Pdghts necessary or appropriate for use in present or future ranching, agricultural production, or the ma/,ntenance of wildlife habitat on the Property; Q. The erection, construction, installation, relocation or use of a communication facility, a telecommunication facility, a network element or .any other telecommunication facilities, equipment 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; Wind-powered electric genemtdrs to produce electricity for off-site use; Hunting on the Property is expressly.prohibited. U. ~Extemal Lighting; to install any lighting which interferes, with wildlife's use oT the property or with landowners whose property is within sight of the subject property, oi~ from'vehicles driving along Highway 82. 533153.1 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 pmcedur, es for prior approval by the Trust as described in paragraph 8: A. Fences: Grantor may repair or replace existing fences and bfiild new fences for purposes incidental and necessary to the management of livestock and wildlife in compliance with the Colorado Division of Wildlife specifications for fencing in wildlife migration areas; B. Leasing of lands for agricultural purposes is permitted; C. Water rights: Grantor shall retain, reserve and preserve the right to use the Water Rights and such new water rights as may be developed as incidental and necessary to the maintenance and protection of the Agricilltural character, wildlife and riparian habitat, and open space and scenic qualities of the Property and to irrigate the Property. Grantor shall have the right to construct, maintain, and improve irrigation fixtures, water wells and other water systems on the Prope. ~rty consistent with the uses permitted hereunder; D. Underground utilities as needed for employee housing and agricultural facilities; E. Cutting and removal of dead, dying and diseased timber as may be reasonably necessary for fire protection or disease prevention purposes; F. The taking of such reasonable steps as arc necessary to control erosion on the Property; G. 'Subject to the prior notice and approval provisions of Paragraphs 7 and 8', below, tree nurseries, row crops or cattle operations or other agricultural uses and related operatibns consistent with the uses permitted herein; H. If the Grantor no longer desires to engage in equestrian and other agricultural . uses or use the Prop erty for agricultural purposes, the Property may revert to wildlife habitat. I.' R. evegetation and habitat restoration and enhancement projects as are consistent with the City of Aspen Resource Management Plan. J. Construction and maintenance o.f public trails consistent with the City of Aspen Resource Management Plan. 6. Reserved Rights. Grantor reserves to 'himself and to his personal representatives, heirs, successors, md assigns, all rights accruing from their ownership of the Property, including the r~ght to engag~ in all uses of the Property that are consistent with the purposes of this~ Easement. Grantor shall notify the Trust in writing, as described in paragraph .7, before exemising reserved rights that might have an adverse impact, on the Conservation Values. Grantor has thi burden to prove that the Grantor's uses are consistent with this easement. 533153;1 5 A. To erect, maintain or replace one single-family home of up to 4,000 square feet, to erect, maintain or replace five Employee Dwelling Units of up to 1,000 square feet each and to maintain and redevelop an equestrian center, barns.and other accessory building~ for the operation of a horse ranch and equestrian facility, with all enclosed buildings (excluding horse pasture shelters) limited to a building envelope not to exceed ten acres, as shown in Exhibit A. B. To use the southern pasture for parking at no more than three (3) special events per year through 2008, provided the Grantor develOPs and implements a plan for restoring the pasture between uses. ' site. C. To preserve and restore the historic barn and cabins/homes on the homestead D. Use of up to 12 acres of the south pasture for a pol0 and/or soccer playing field, al~)ng with standard field amenities such as parking, spectator facilities and restrooms, but no lighting as are consistent with the City (If Aspen Kesource Management Plan, provided any permanent facilities are located along the western side of the pasture to preserve a greenbelt area along Highway 82. E. Use of approximately2 acres for the operation of an archery range. 7. Notice of Intention to Undertake Certain Permitted Actions. The purpose of requiting Grantor to notify the Trust before undertaking certain permitted activities is to 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 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 sufficient det~.il to permit.the Trust to raake 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 modifieations. . 9. Trust's Remedies: EnfOrcement. 9.11 Arbitra:.tion. If a dispute arises between the part/es concerning the consistency of any proposed use or activi}y with the purposes of this Easement, Grantor agrees not to proceed 533153.1 6 ii with the disputed use or activity pending resolution of the dispute. Either party may refer .the dispute to arbitration by request made in writing upon the other. Within thirty (30) days of the receipt of such a request, the parties shall select a single arbitrator to hear the matter. If the parties are unable to agree on the selection of a single arbitrator, then each party shall name one arbitrator and the two arbitrators thus selected shall select a third arbitrator who shall alone arbitrate the dispute; provided, however, if either party fails to select an arbitrator, or if the two arbitrators selected by the parties fail to select the third arbitrator then the arbitrator first selected by a party shall serve as arbitrator. A judgment on the arbitration award may be entered in any court having jurisdiction thereof. The prevailing party shall be entitled, in addition to such other relief as may be granted, to a reasonable sum for all its costs and expenses related to such arbitration, including, without limitation, the fees and expenses of the arbitrator(s) and attorneys' fees, which shall be determined by the arbitrator(s) and ar~y court of competent jurisdiction that may be called upon to enforce or review the award. The arbitrator has the authority to issue an injunction to prevent the Grantor from undertaking a prohibited action on the property, and to require specific performance of the Grantor to remedy a prohibited action. If the Grantor is required by this agreement to seek approval for a proposed activity, the Grantor shall refrain fi:om performing the activity for which approval is being sought until the Trust has decided to grant approval or until an arbitrator has been selected and has ruled on the proposed a6tivity. Within 30 days after one party invokes arbitration, each party shall provide the other with a good faith estimate of the' cost of reasonable attorney fees, expenses and costs resulting from the arbitration. 9.2. 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 injured to its prior condition in 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. 9.3. Injunctive 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, fails 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 appoint an arbitrator to enforce the terms of this Easement, utilizing the procedures set forth in Paragraph 9.1 above, to enjoin the violation, ex pane 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. :~ 9.4. 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, plus reasonable attorn6y's fees, expenses and costs. Without limiting Grantor's liability therefore, the Trust, 'in its' sole 533153.1 discreiion, may apply any damages recovered to the cost of undertaking any corrective action on the Property. 9.5. Emergency Enforcement. If the Trust, reasonably believes an ongoing or threatened imminent activity violates the Easement, the Trust may, in its sole discretion, take immediate corrective action, including, without limitation, the control of noxious weeds, as set forth in this paragraph 9 without prior notice to Grantor and without waiting for the period - provided for cure to expire. 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 bd borne by Grantor; provided, however, that if Grantor ultimately prevails in a judicial enforcement action each party shall bear its own costs. [Note: These costs are not associated with on-going compliance monitori.'ng performed by ~ Grantee pursuant to paragraph 3, above.) 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. C~R.S. Section 38-41-119, which provides a one-year statute of limitations, is ~pecifically overridden by this paragraph. 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 significam injury to the Property resulting from such' causes. 10. Access. Nothing contained herein shall be construed as affording the public access to any portio~ of fhe 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 t~rms of this Easement. 533153.1 i i 11. Costs, Liabilities, Taxes and Environmentai Compliance. 11.1. Cost{, Lea:al Requirements and Liabilities. Grantor retains all responsibilities and shall bear all costs and liabilities of any kind related to 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 constraction 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. 11.2. 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 (1,0) days prior written.notice to Grantor, in accordance with any bill, statement, or estimate procured from the appropriate authority, without inquiry into the validity of the Taxes or the accuracy of the bill, statementl 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. 11.3. ~epresentations 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 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 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, chemicals and pesticides customarily used or transported in connection with camping, wrangling, agricultural and construction activities on the Property; 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 requirements; C. (3rantor and the Property are in compliance with all federal, state, and local laws, regulations, and requirements applicable to the Property and its use; D. But for potential eminent domain proceedings for the establishment of a publi~: roadway across the Property, there is no.pending or threatened litigation in any ~va~ affeciing, .involving, or relating to the property; E. iMo civil or criminal proceedings or investigations have been instigated at any time or are now per, ding, a~nd no notices, claims, demands, or orders have been received, arising 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 acquire and hold conservation easements under Colorado law 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 assignment. 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 trausfer 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 Easem. ent 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 otherwise 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. Howeverl in the event that weather, or other cirdumstances outside of the Trust's control, p~'event 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 which prevent the inspection no longer exist. 16. Notices. Any notice, demand, request, consent, approval, or communication that eithei- party 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 b.y written notice to the other: To Grantor: The City o[Aspeh 130 South Galena Aspen, CO 81610 To the Trust:' Aspen Valley Land Trust 320 Main Street, Suite 204 . Carbondale, CO 81623 533153.1 12 17. Ret0rdation. 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 circumstances 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 judgrnenL 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 perpetual 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 to subordinate its rights in the Property to the extent necessary to permit the Trust to enforce the purposes of this Easement in perpetuity and to prevent any modification or extinguishment of this Easement by the exercise of any fights of the deed of trust holder. 20. General Provisions. 20.1. The following Exhibits are attached to and incorporated by reference into th/s conservation easement deed, Exhibit A: Baseline Documentation, Exhibit B: a document attesting that the legal description of the property will be defined and recorded within thirty (30) days of the final approval of the Burlingame Housing Project by the City of Aspen. 20.2. Definitions. The terms "Grantor" and the "Trust", wherever used'herein, and any pronouns used in place of those terms, shall be deemed t° 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 F_,asement that would render the provision ~alid shall be favored over any interpretation that '~ould 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 un.restricted use ofre~! prop~r/y shall not apply to interpretations of this Easement or to disputes between the Pa~ties concerning the meaning of particular provisions of this Easement.' · 20.5. Severabilit¥. If any provision of. this Easement, or the application thereof to any person or circumstance, is found to be invaiid, 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 _Am'cement. This instrument sets forth the entire agreement between the Parties with respect to 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. Jr~int 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 running in perpetuity with the Property. 20.10. Termination of Rights and Obligations. 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 in this instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon construction or interpretation. 20.12. Counterparts. The parties may execute this instrument 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 reco[ded counterpart shall be controlling. 533153,1 IN WITNESS WHEREOF, Grantor and the Trust have executed this Deed of Conservation Easement as of the date first written above. GRANTOR CITY OF ASPEN a Colorado munic Title: ~ ~,,-;.,,/~',,'~" W ' ~ The foregoing instrument ~as ac~owledged before me this gO~ day of WITNESS my hand and official seal. Notary Public My commission expires: BrandiL. Jepson/Nola~ Public My Commission Expires 1/22/2005 601E. Hopkins Aspen, CO 81611 15 kCCEPTED: ['RUST x. SPEN VALLEY LAirD TRUST, · Colorado nonprofit corporation, Aar~ha Cochran ts: Executive Director :TATE OF · ¢, ) ss. :OU V¥ OF ) 'he ~going instrument was ac~owledged before me )irector of ASPEN V~LEY L~ TRUST, a Colorado nonprofit co~oration. this ~9?~.~~''k day of as Executive 9'ITNESS my hand and official seal. . ;d~<¢..~..:----¥~/.0-~. Notary Public ' /~.0..~/.,.~ My co=ission expires: · g ~So~ j~ Bmndi L. Jep~on / NOta~ ~ .~x ' /~ gy Commission Expires ~/2272005 ~l~ ~:h~ff ' 601 E. Hopkins W~6/lV~3-O:~jo zy Point~ 17 03 d~ ~pen, CO 8161 3153.1 Kinder Morgan Rate Increase Before Public Utilities Con,mission Docket No. 02A-524G, No. 02A-522G Binder 2 Page - 1 - 17. 18. · 19. 20. Staff of CPUC's Unopposed Motion for Extension of Time and Re uest for Waiver of Response Time - 5/12/03 Unopposed Motion of Kinder Morgan & Rocky Mtn. Natural Gas for Extension of Time to File Stipulation to Reset Heating Date and to Request Waiver of Response Time - 5/29/03 Interim ORDER Granting Unopposed Motion for Extension of Time Inter/m ORDER - Hearing set 7/14/03 EXHIBIT A ~ parcel of land situated in Sections 16 and 21,' Township 9 South, Kange 85 West of the 6th P.M. being a portion of the Cozy Point Ranch as described in Book 690 at Page 5 of the Pitkin County records ~escribed as follows: Beginning at a point on the Westerly boundary of the Dedicated Open Space Parcel of the Cozy Point Ridge Subdivision recorded in Plat Book 22 at Page 26 of the Pitkin County records whence the Northwest corner of Section 16 (1913 Brass Cap) bears N 20Q21'49'' W 502.66 feet; thence N 69:23'59" E 674.16 feet to the Northwesterly right of way of Colorado State Highway No. 82; thence Southerly along the Westerly right of way of Colorado State Highway No. 82 as described in Book 157 at Pages 538, 539 & 540 and Book 575 at Page 976 as follows: S 41033'37'' E 395.21 feet; 591.57 feet along the arc of a curve to the right whose radius is 0. 1,382.50 fe~t (chord. bears S 29:18'07" E 587.07 feet); .. S 17o02'37" E 1,360.80 feet; 130.20 feet along the arc of a curve to the right whose radius 'is 2,815.00 feet (chord bears S 15Q43'07'' E 130.19 feet); S 14~23'37'' E 2,435.30 feet; 131.14 feet .along an arc of a curve to the left whose radius is 5,780.00 feet (chord bears S 15°02~37'' E 131.14 feet); S 15040'45'' E 912.95 feet; S 74°21' W 20.0 feet; S 02647.' W 63..2 feet; S 15039' E 50.0 feet; S 64°28'14'' E 53.22 feet; S 15:40'45" E 2,039.41 feet; S 15°41'37" E 2,084.63 feet to the Northerly right of way of Brush Creek County Road; thence Westerly along the Northerly right of way of Brush Creek County Road as follows: S 43°43'17'' W 116.15 feet; S 73°32'00" W 145.7.1 feet; 404.44 feet along an arc of a curve to the left whose radius is 1,005.70 feet (chord bears S 62000'46'' W 401.72 feet; thence N 19:44' W 38.62 feet to the Southeast corner of Brush Creek .village Subdivision Filing 2 as Platted; thence Northerly along the Easterly line of Brush Creek village Subdivision Filing 2 as Platted as follows: N 19a44' W 390.00 feet; N 31025' W 732.00 feet; N 24a00' W 1,831.~29 feet; . N 64055' W 340.50 feet to the Easterly line of the Elay Parcel described in Book 228 at Page 599 of the Pitkin County Records; thence Northerly along the Easterly line of said Elay Parcel as ,~ follows: N 25°48'20'' E 153.17 feet; 370.63 feet along an arc of a curve to.the left whose radius is 531.95 feet (chord bears N 05°50'56'' E 363.18 feet); 197.92 feet along an arc of a curve to the right whose radius is 630.00 feet (c.ho~d bears N 05"06'40'' W 197.11 feet); N 03053'20'' E 576.86~'feet; thence N 07:01'32" W 1,942.73 feet to the Westerly line of the EXMIBIT A (Continued) Dedicated Open Space Easement of the Cozy Point RidGe Subdivision; thence N 20~21'~9'' W 3,989.84 feet along the Easterly line of said Open Space Easement to the point of beginning. CoO-NTY OF PITKIN, STATE OF COLOR3kDO.