HomeMy WebLinkAboutbocc.ord.006.2008RECEPTION#: 548678, 04/29/2008 at
11:45:54 AM,
1 of 22, R $0.00 Doc Code ORDINANCE
Janice K. Vos Caudill, Pitkin County, CO
AN ORDINANCE OF THE
BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO, ACCEPTING THE CONVEYANCE
BY RICHARD NEILEY TO PITKIN COUNTY OF A CONSERVATION EASEMENT
CREATING VALUBLE RIVER ACCESS TO THE/ROARING FORK RIVER.
ORDINANCE # ~(~ ~~c'~c~
~~
' ~ RECITALS
1. The voters of Pitkin County and the Pitkin County Commissioners established an
Open Space and Trails Fund for the purposes of preserving and developing open
space and trails resources in Pitkin County, and established an Open Space and
Trails Board of Trustees to guide the expenditure of those funds; and,
2. Richard Neiley owns a parcel of land near the north Woody Creek Bridge; and,
3. On December 27 2007, Mr. Neiley granted a conservation easement to Pitkin
County which provides public access from the adjacent county road to the Roaring
Fork River and along its banks; and,
3. The Open Space and Tails Board moved to recommend that Pitkin County accept
this conservation easement; and,
4. The County Commissioners of Pitkin County wish to accept the conveyance of this
conservation easement, which will be monitored by the Open Space Department;
~, and,
NOW THEREFORE BE IT ORDAINED by the Board of County
~ Commissioners of Pitkin County, Colorado, that:
1. The BOCC hereby accepts a conservation easement from Richard Neiley which
creates public access to the Roaring Fork River.
2. Upon final approval by the County Attorney and County Open Space Director, the
Chairman of the Board is hereby authorized and directed to execute and/or accept
any and all documents necessary to complete the transaction which may be
necessary to effect said conveyance.
INTRODUCED, FIRST READ AND SET FOR PUBLIC HEARING AT
THE REGULAR MEETING on the 23rd Day of January, 2008
NOTICE OF PUBLIC HEARING PUBLISHED IN THE ASPEN TIMES
WEEKEND EDITION on January 27, 2008.
2
APPROVED AND ADOPTED AFTER SECOND READING AND PUBLIC
HEARING on thel3th day of February, 2008
PUBLISHED AFTER ADOPTION IN THE ASPEN TIMES WEEKEND
EDITION on the 24th day of February, 2008
T; BOARD OF COUNTY COMMISSIONERS
~t OF PITKIN COUNTY, COLORADO
;Jones Jack Hatfield, Chai
Clerk & Re~ rder
Date: ~' ~ 3 " ~ ~
APPROVED AS TO FORM:
_____-_
John Ely, County Attorney
~- ~ .
MANAGER APPROVAL:
~~~ ~~
Hilary Fl c er, County Manager
RECD ENDED FOR TION:
Dale ill, Director'
Open Space and Trails
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RECEPTION#: 545300, 12/27/2007 at 03:31:46 PM, 1 OF 20, R $101.00
Janice K. Vos Caudill, Pitkin County, CO
DEF,D OF CONSERVATION EASEMENT
(Neiley Property-Pitkin County)
`~ This DEED OF CONSERVATION EASEMENT (this "Easement") is granted this
day of December, 2007, by RICHARD Y. NEILEY, JR, ("Grantor"), to the BOARD OF
COUNTY COMMISSIONERS OF PITHIN COUNTY, Colorado, a body corporate and
politic, 530 E. Main St., Ste 301, Aspen, Colorado 81611 (the "County"), and their successors
and assigns (Grantee) Grantor and Grantee are sometimes collectively referred to in this
Easement as the "Parties" and individually as the "Party."
The following exhibits are attached hereto:
Exhibit A - Legal Description of Master Parcel
Exhibit B - Map of Master Parcel showing Property
RECITALS:
A) Grantor is the sole owner in fee simple of certain real property in Pitkin County,
Colorado, containing approximately .945 acres, more or less, more particularly described
in Exhibit A and depicted in Exhibit B attached hereto and incorporated by this
reference (the "Master Parcel").
B) A portion of the Master Parcel is adjacent to the Roaring Fork River and is identified on
Exhibit B as the "Conservation Easement" and generally described as all of the azea of
the Master Parcel to the south and west of the building envelope depicted on Exhibit B
and the Neiley Site Plan and 1041 Hazard Review Map recorded in Plat Book 78 at Page
76 and an area of the Master Parcel to the east of said building envelope and south of the
driveway providing access to the building envelope, including all of the lands along the
banks of and underlying the Roaring Fork River (the "Property").
C) The Property possesses natural, scenic, open space, recreational, and environmental
values (collectively, the "Conservation Values" hereinafter described) of great
importance to Grantor, Grantee, the people of Pitkin County, the people of the State of
Colorado, and the people of the United States, which are worthy of protection in
perpetuity. Grantor and Grantee recognize that development of the Property in excess of
what is allowed by this Easement, which development maybe permitted by the provisions
of the Land Use Code of Pitkin County, Colorado currently applicable to the Property,
would have an adverse impact on, and greatly impair, the Conservation Values.
D) In particular, the Property possesses at least the following Conservation V alues: The
Property is adjacent to the Roaring Fork River and includes riparian habitat and scenic
qualities. In addition, preservation of the Property by this Easement will provide public
access to the Roaring Fork River which does not currently exist and will prevent or limit
development which would impair the riparian habitat and scenic values of the Parcel.
Neiley Property Deed of Conservation Easement
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E) The Parties acknowledge that the Conservation Values will be further documented in an
inventory of the current condition, and relevant features of the Property (the "Baseline
Documentation"), prepared at Grantor's expense. A copy of the Baseline
Documentation will be kept on file at the offices of Grantor and Grantee. The Baseline
Documentation consists of reports, maps, photographs, and other documentation that the
Parties agree provide, collectively, an accurate representation of the current condition of
the Property, which is intended to serve as an objective information baseline for
monitoring compliance with the terms of this Easement. However, in the event of a
dispute over the current condition of the Property neither Party shall be precluded from
providing other relevant evidence of such condition.
F) Grantor intends that the Conservation Values be preserved and maintained by the
continuation of the relatively undeveloped condition of the Property existing at the time
of this grant, except as provided herein. Grantor, as owner of the Property, further
intends to convey to Grantee the right to preserve and protect the Conservation Values of
the Property in perpetuity. Grantee is also a charitable organization as required under
C.R.S. § 38-30.5-101 et seq., which provides for conservation easements to maintain land
and water in a natural, scenic or open condition, for wildlife habitat, and other uses or
conditions consistent with the protection of open land in Colorado. Further, Grantee is a
government entity qualified under §§ 501(c)(3) and 170(h) of the IRS Code.
G) Grantor and Grantee furthermore anticipate that Grantor may, in the future, elect to
convey to Grantee fee title to the Property.
NOW, THEREFORE, in consideration of the Recitals, and the mutual covenants, terms,
conditions, and restrictions contained herein; 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, gives, and conveys to Grantee this Easement in perpetuity over the Property, of the
nature and character and to the extent hereinafter set forth.
Conservation Purposes. The "Conservation Purposes" of this Easement are (i)
to preserve the Conservation Values, and other significant conservation interests
(to the extent that it is not necessary to impair such other interests in order to
protect the Conservation Values) in perpetuity and (ii) to restrict the use of the
Property to those uses that are consistent with such values and interests. The
Conservation Purposes are in accordance with § 170(h) of the Code. To achieve
the Conservation Purposes, Grantor conveys this Easement to Grantee to ensure
that the Conservation Values will be preserved and protected forever. Subject to
the Conservation Purposes, Grantor and Grantee intend to permit only uses of the
Property which do not substantially diminish or impair the Conservation Values
and to prevent any use of the Property that will substantially impair or interfere
with protecting the Conservation Values.
2. Affirmative Rights of Grantee. To accomplish the Conservation Purposes the
following rights are conveyed to Grantee by this Easement:
Neiley Property Deed of Conservation Easement
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2.1. To preserve and protect the Conservation Values.
2.2. To enter upon the Property at reasonable times and upon prior written notice to
Grantor to complete the work and thereafter repair and maintain the Property
as contemplated by this Easement, to observe, study and make educational and
scientific observations on the Property; provided, however, that any such right
of entry by Grantee shall not unreasonably interfere with Grantor's use and
quiet enjoyment of the Property consistent with this Easement; and, subject to
Paragraph 6 hereof, to enforce the terms of this Easement.
No notice to Grantor shall be required if Grantee determines that immediate
entry is essential to prevent, or mitigate, a violation of this Easement that
could substantially impair the Conservation Values, or if the then owner of the
Property has not provided Grantee with an address to which such notice can be
provided; provided that Grantee provides notice as soon as possible describing
the reason for such entry, and provided that Grantee's actions are no more than
necessary to prevent or mitigate such violation.
2.3. To enjoin or prevent any activity on or use of the Property that is inconsistent
with the Conservation Purposes, and to require the restoration of such areas or
features of the Property that maybe damaged by any inconsistent activity or
use, as provided in Pazagraph 6.
2.4. To recommend enhancement measures for the Property or measures which
would enhance the wildlife habitat, or other natural features of the Property,
and to enter upon the Property with Grantor's written permission to perfornr
such enhancement at Grantee's own expense at times which will not
unreasonably interfere with Grantor's use of the Property.
2.5. To require the restoration of such areas or features of the Property that maybe
damaged by any use that is inconsistent with the Conservation Purposes.
2.6 The right, for the use and benefit of the general public, to enjoy passive, non-
motorized recreational use such as hiking and picnicking on delineated trails
and facilities such as picnic tables and benches that maybe installed,
constructed or provided by Grantee.
2.7 The right, for the use and benefit of the genera] public, to park vehicles in a
designated parking within the Property, the location of which shall be
determined by Grantee and shall be adjacent to the County Road of sufficient
size to accommodate up to three cars.
2.8 The right, for the use and benefit of the general public, to construct, install,
maintain, repair and replace river access facilities, including without
limitation, ramps or related improvements for the launching of boats, and
facilities for handicap access for fishing and enjoyment of the Roaring Fork
Neiley Property Deed of Conservation Easement
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Janice K. Vos Caudill, Pitkin County, CO
River, adjacent to the Roaring Fork River within the Property.
3. Permitted and Prohibited Uses. The Property shall be used only for open space
conservation, wildlife habitat, non-motorized recreational uses and river access;
provided, however, that Grantee shall be entitled to use motorized vehicles in
connection with land restoration and maintenance of the Property and parking
shall be permitted as contemplated in Pazagraph 2.7 above. Any other activity on
or use of the Property inconsistent with the Conservation Purposes is prohibited.
All uses expressly or impliedly permitted or reserved on the Property by this
Easement shall be undertaken in a manner that is consistent with the Conservation
Purposes. Without limiting the generality of the foregoing, the following
activities and uses aze permitted or prohibited as expressly provided below:
3.1. Buildines and Structures Prohibited The construction of any building or other
structures or improvements on the Property, except those expressly permitted
herein, is prohibited.
3.2. Fences. Fencing maybe placed on the boundary between the Property and
the adjoining I.ot in the Aspen Village River Homes Subdivision adjacent to
Gerbaz Way. Fencing maybe placed on the property itself only by Grantee
for the purpose of limiting access by motor vehicles and delineating public
trails. When such fencing is constructed on the Property, it will comply with
standards approved by the Colorado Division of Wildlife for the migration of
wildlife across the Property.
3.3. Trash: Storage of Vehicles. The dumping and/or uncontained accumulation of
any kind of trash or refuse on the Property is prohibited, except plant material
associated with permitted agricultural operations which can be composted and
used for erosion control. All outside storage of trash shall be in bear-proof
containers. The outside storage of abandoned or inoperative vehicles is
prohibited on the Property.
3.4. Commercial or Industrial Activity Nuisances No industrial uses or nuisances
shall be allowed on the Property. No commercial uses shall be allowed on the
Property, except those expressly reserved in this Easement
3.5. Pavin¢ and Road and Trail Construction Except within designated parking
areas, no new residential access roads maybe constructed or used on the
Property and no portion of the Property shall be paved or otherwise covered
with concrete, asphalt, or any other paving material except my mutual consent
of Grantor and Grantee.
3.6. Vegetation. The introduction by Grantor or Grantee of any noxious weed as
defined by the Pitkin County Noxious Weed Management Plan and applicable
state law is prohibited on the Property. Grantee will use reasonable efforts to
control noxious weeds (invasive, non-native species of plants) on the Property.
Neiley Property Deed oCConservation Easement
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Janice K. Vos Caudill, Pitkin County, CO
3.7. Recreation; Off-Road Use of Vehicles. The Property maybe used for non-
motorized recreational uses such as pedestrian and river access. Off-road use
of motorized vehicles, including snowmobiles, is prohibited except for
property maintenance performed by Grantee.
3.8 Leases. Grantor agrees not to enter into any lease or other agreement for all or
a portion of the Property unless such lease or other agreement includes
reference to this Easement, and unless such lessee or other party agrees in
writing to comply with the terms of this Easement. A copy of such agreement
will be provided to Grantee at least ten (10) days prior to the beginning of the
leasehold. Nonetheless, Grantor shall remain liable for compliance with all of
the terms and conditions of this Easement. Failure to comply with this
provision shall not affect the validity of such lease or other agreement.
3.9 SipnaQe or Billboards. No commercial signs, billboards, awnings, or
advertisements shall be displayed or placed on the Property.
Reserved Rights. Grantor reserves to itself, and to its successors and assigns, all
rights accruing from its ownership of the Property, except for uses that are
expressly prohibited herein and/or are inconsistent with the Conservation
Purposes. Specifically, Grantor reserves the right to construct improvements
within the building envelope depicted on the Neiley Site Plan and 1041 Hazard
Review Map, including the designed ISDS Field and driveway/access to the
Property.
Enforcement and Mediation. The Parties shall have the right to prevent and
correct or require correction of violations of the provisions of this Easement,
including the right, but not the obligation, to enforce the restoration of any, and
all, of the Conservation Values damaged by activities inconsistent with the
Conservation Purposes. Such restoration shall be, as nearly as possible, to the
condition that existed on the date of the recordation of this Easement, except for
such changes as may have been made to the Property consistently with the terms
of this Easement.
Grantee may enter the Property for the purpose of inspecting for violations in
accordance with Paragraph 2.2 above. If either Party finds what it reasonably
believes is a violation, that Party shall immediately notify the other Party in
writing of the nature of the alleged violation. Upon receipt of this written notice,
the Party to whom such notice has been sent shall either (a) cease such violation
and, if required, restore the Property as provided above in this Paragraph, or (b)
promptly provide a written explanation to the Party sending the notice of the
reason why the Party receiving the notice believes that no violation exists or why
the alleged violation should be permitted, in which event both Parties agree to
meet as soon as possible to resolve this difference of opinion. If a resolution of
Neiley Property Deed of Conservation Easement
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Janice K. Vos Caudill, Pitkin County, CO
this difference cannot be achieved at the meeting, both Parties agree to meet with
a mutually acceptable mediator to attempt to resolve the dispute. Grantor shall
discontinue any activity which could increase or expand the alleged violation
during the mediation process. Should mediation fail to resolve the dispute, either
Party may, at its discretion, take appropriate legal action. Should the Parties,
through mediation, or otherwise, conclude that the alleged violation is not a
violation, the challenged activity or use shall be deemed approved.
Without notice to Grantor, and without seeking mediation as provided for in the
preceding paragraph, at any time when, in Grantee's reasonable opinion, an
ongoing or imminent violation could irreversibly diminish or impair the
Conservation Values, Grantee may, at its discretion, take appropriate legal action.
Grantee may seek an injunction to stop a violation, temporarily or permanently
and/or to require Grantor to restore the Property to its condition prior to the
violation as provided above.
Notwithstanding the foregoing, Grantee shall provide a written explanation to
Grantor for its actions taken without notice, and a written description of the
actions taken, as soon as practical. Furthermore, any action taken without notice
shall be the minimum necessary to prevent such irreversible diminution or
impairment of the Conservation Values.
6. Costs of Enforcement. If Grantee prevails in any action to enforce the terms of
this Easement, Grantee's reasonable costs of suit, including, without limitation,
reasonable attorneys' fees, and any reasonable costs of restoration, shall be borne
by Grantor. In the event that Grantee is found by a court having jurisdiction in the
case to have intentionally violated the terms of this Easement, Grantor shall be
entitled to recover its reasonable costs of suit, including, without limitation,
reasonable attorney's fees, and any other damages sustained by Grantor as a result
of such violation.
7. Discretion. Enforcement of the terms of this Easement shall be at the discretion
of that Party which has the right of enforcement with respect to any given breach
or alleged breach of the terms of this Easement, and any forbearance by such Party
to exercise its rights under this Easement in the event of any such breach shall not
be deemed or construed to be a waiver by such Party of such term or of any
subsequent breach of the same or any other term of this Easement or of any of
such Parry's rights under this Easement. No delay or omission by a Party in the
exercise of any right or remedy to which it maybe entitled hereunder upon any
breach by the other Party shall impair such right or remedy or be construed as a
waiver.
8. Waiver of Certain Defenses. The Parties hereby waive any defense of estoppel,
except as provided in this Paragraph 9, lathes or prescription. The failure of a
Party to discover a violation or to take immediate legal action shall not bar it from
doing so at a later time. Grantor hereby waives any defense available to Grantor
Neiley Property Deed of Conservation Fasement
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pursuant to C.R.S. § 38-41-119.
9. Acts Beyond Grantor's Control. Nothing contained in this Easement shall be
construed to entitle Grantee to bring any action against Grantor for any injury to or
change in the Property resulting from causes beyond Grantor's control, including,
without limitation, fire, flood, storm, and earth movement, or from any prudent
action taken by Grantor under emergency conditions to prevent, abate, or mitigate
significant injury to the Property resulting from such causes.
10. Subsequent Transfers. Grantor agrees to incorporate by reference the terms of
this Easement in any deed or other legal instrument by which it transfers any
interest in all or a portion of the Property, including, without limitation, a
leasehold interest. Grantor further agrees to give Grantee written notice of the
transfer of any interest at least thirty (30) days prior to the date of such transfer,
including the transferee's name, address and telephone number. The failure of
Grantor to perform any act required by this Paragraph 12 shall not impair the
validity of this Easement or limit its enforceability in any way, or the validity of
such transfer.
l 1. Costs of Operation, etc. Upon execution of this Easement, Grantee shall retain
all responsibilities and shall bear all costs of any kind related to the ownership,
operation, upkeep, and maintenance of the Property in accordance with the terms
of this Easement. Grantor shall have the right to obtain and maintain
comprehensive general liability insurance coverage and to add and maintain
Grantee as an additional insured to such insurance coverage: Any liens arising out
of any work performed for, materials furnished to, or obligations incurred by
Grantor or Grantee shall be and remain subordinate to this Easement. Grantee
shall be responsible for the operation, upkeep, and maintenance of public parking
and river access facilities. Grantee hereby assumes complete responsibility for and
agrees to care for the Property and all public facilities thereon in a clean and
attractive condition and in a good and safe order and repair, at its sole cost and
expense, unless the need therefore is caused by Grantor, assigns, or its successor
in interest in the ownership of the underlying real property in which case Grantor
or its successor in interest, shall perform the maintenance or care so required.
Grantee's maintenance responsibilities shall include, but not be limited to, trash
and debris removal, keeping the river access and parking clear of rocks, vegetation
and other obstructions, grooming as needed, controlling erosion and water runoff,
and general care and maintenance.
12. 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 the "taxes"), including any taxes imposed upon,
or incurred as a result of, this Easement, and shall furnish Grantee with
satisfactory evidence of payment upon request. Grantee is authorized but in no
event obligated to make or advance any payment of taxes, upon thirty (30) days
prior written notice to Grantor, in accordance with any bill, statement, or estimate
Neiley Property Deed of Conservation Easement
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procured from the appropriate authority, without inquiry into the validity of the
taxes or the accuracy of the bill, statement, or estimate, and the obligation created
by such payment shall bear interest until paid by Grantor at the lesser of the prime
rate of interest from time to time charged by a bank selected by Grantee or the
maximum rate allowed by law.
13. Liability.
13.1. Grantor's Liability. Grantor shall hold harmless, indemnify, and defend
Grantee and its members, directors, officers, employees, agents, and
contractors and the heirs, persona] representatives, successors, and assigns of
each of them (collectively "Indemnified Parties") from and against all
liabilities, penalties, costs, losses, damages, expenses, causes of action, claims,
demands, or judgments, including, without limitation, reasonable attorneys'
fees, arising from or in any way connected with: (1) the negligent actions of
Grantor and Grantor's officials, employees, and agents in the performance or
failure to perform their obligations pursuant to this Easement; (2) injury to or
the death of any person, or physical damage to any property, proximately
caused by any intentional or negligent act or omission of Grantor, its officials,
employees, or agents related to or concerning the Property; and (3) the
presence or release of hazardous or toxic substances on, under or about the
Property, and all claims, demands, liability, damages, or costs caused thereby,
unless such substance was introduced onto the Property by Grantee or any of
its officials, employees or agents. For the purpose of this Paragraph,
hazardous or toxic substances shall mean any hazardous or toxic substance
which is regulated under any federal, state or local law. In assuming
responsibility under this Paragraph, Grantor in no way assumes responsibility
for the intentional or negligent, acts or omissions of Grantee, its officers,
employees or agents.
13.2. Grantee Not an "Onerator." Nothing in this Easement shall be construed as
giving rise to any right or ability of Grantee or to exercise physical or
managerial control of Grantor's activities on the Property, or to otherwise
become an "operator" within the meaning of The Comprehensive
Environmental Response, Compensation and Liability Act of 1980
("CERCLA") as amended or any other federal, state, or local law or regulation
making operators of property responsible for the remediation of environmental
contamination.
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13.3 Grantee's Liability. Grantee shall be responsible for: (1) the negligent actions
of its officials, employees, and agents in the performance or failure to perform
their obligations pursuant to this Easement; and (2) injury to or the death of
any person, or physical damage to any property, proximately caused by any
intentional or negligent act or omission of Grantee, its officials, employees, or
agents related to or concerning the Property.
13.4 Grantee's Additional Liability Regazdina Public Access: The parties expressly
acknowledge that the public access granted herein is granted for a
"recreational purpose" under C.R.S. Section 33-41-101, et se ., and that
Grantor is entitled to the benefits, protections and limitations on liability
afforded by Colorado law governing recreational Easements, including
without limitation said Section 33-41-101, et seq. By granting this Easement,
Grantor shall have no obligation to repair, clear or otherwise maintain the area
within the public trail and parking facilities, or to insure or indemnify Grantee
or the public for any injury, claim or damage to any person or property,
whether alleged to have occurred as a result of use by the general public for
public non-motorized travel or otherwise, or due to the condition of the
Property. Grantee further agrees to add Grantor (and its successors and assigns
in the ownership of the Master Parcel) as additional named insureds on its
comprehensive general liability insurance policy, which insurance shall be
maintained by Grantee to provide protection against liability from claims
arising out of this Easement. Such insurance shall be carried in amounts not
less than the liability limits specified in C.R.S. Section 24-10-114(1), as it may
be amended from time to time, and shall provide Grantor and Grantor's
successors and assigns with thirty (30) days advance written notice prior to
cancellation or termination. Grantee shall, upon written request therefore
from Grantor or any successor or assign, provide a Certificate of Insurance as
verification of compliance with these requirements.
13.5 Itt assuming responsibility under Paragraph, Grantee in no way assumes
responsibility for the intentional or negligent acts or omissions of Grantor, its
officers, employees or agents.
14. Extinguishment. This Easement may only be extinguished, in whole or in part,
by judicial proceedings in a court of competent jurisdiction. In the event that this
Easement is extinguished as to all, or a portion, of the Property, Grantee shall be
entitled to a share of any proceeds resulting from the conveyance of the
underlying Property on the terms contained in this Paragraph 14.
Notwithstanding the other provisions in this Paragraph, Grantor and Grantee
anticipate that Grantor may, in the future, elect to also convey the its remaining
interest in the Property to Grantee, provided that Grantee undertakes all steps to
perfect such a subsequent additional conveyance, including division of the
Property from other lands retained by Grantor. In the event that Grantee later
obtains a fee title interest in the Property, this Easement will be deemed to have
Neiley Property Deed of Conservation Easement
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merged with the fee property interest and will be no longer of any force or effect.
This provision is required by § 1.170A-14(g)(6)(ii) of the Treasury Regulations
fora "qualified conservation contribution," and is intended by the Parties to
comply with such Regulations, and to entitle Grantee to all of the rights that such
Regulations require that a "donor" grant to a "donee organization."
14.1. Value of this Easement. This Easement constitutes a real property interest
immediately vested in Grantee with a fair market value that is at least equal to
the proportionate value that this Easement, determined by multiplying the fair
market value of the Property unencumbered by the easement by the ratio of the
value of the Easement at the time of this grant to the value of the Property as a
whole, without deduction for the value of the Easement, at the time of this
grant.
14.2. Payment and Allocation of Proceeds in the Event of Termination or
Extinguishment. If this Easement is taken, in whole or in part, by exercise of
the power of eminent domain, or if circumstances arise in the future that render
the purpose of this Easement impossible to accomplish, this Easement can only
be terminated or extinguished, whether in whole or in part, by judicial
proceedings in a court of competent jurisdiction. Each Party shall promptly
notify the other Parties and in writing when a Party first learns of such
circumstances. Grantee shall be entitled to compensation in accordance with
applicable law, after the satisfaction of prior claims, from any sale, exchange,
condemnation, or other involuntary or voluntary conversion of all or any
portion of the Property subsequent to such termination or extinguishment.
Grantee's compensation shall be an amount equal to the Easement value
percentage determined according to the provisions of Paragraph 16.1 above,
multiplied by the amount of the full proceeds from any sale, exchange,
condemnation, or other involuntary or voluntary conversion of all or a portion
of the Property ("Extinguishment Proceeds").
14.3. Use of Proceeds. Any proceeds received by Grantee pursuant to this Paragraph
14 shall be used by Grantee, and/or in a manner that is consistent with the
Conservation Purposes.
15. Assignment. Grantee may assign its rights and obligations under this Easement
only to an organization that is (a) a qualified organization at the time of transfer
under § 170(h)(3) of the Code, (b) authorized to acquire and hold conservation
easements under Colorado law, (c) agrees to assume the responsibility imposed on
Grantee by this Easement. Grantee shall provide Grantor with a written request to
assign the Easement at least forty-five (45) days prior to the date of the
assignment transaction.
16. Subordination of Mortgages. Grantor covenants and represents that at the time
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of granting of this Easement any mortgage or deed of trust is and shall remain
subordinate to the terms of this Easement.
17. Notices.
17.1. Delivery of Notice. Any notice, demand, request, consent, approval, or
communication that either Party desires or is required to give to the other or to
shall be in writing and either served personally or sent by first class mail,
postage prepaid, addressed as follows:
To Grantor: Richard Y. Neiley, Jr.
c/o Neiley & Alder, Attorneys.
201 North Mill Street, Suite 102
Aspen, CO 81611
To the County: Dale Wil]
Pitkin County Open Space & Trials Program
530 East Main Street, 3rd Floor
Aspen, CO 81611
at the address shown above, or to such other address as either Party or from
time to time shall designate by written notice to the other. The provisions of
this Paragraph 19 are subject to the provisions of Paragraph 21.12 below.
17.2. Written Notice to Grantee Required. The purpose of requiring Grantor to
notify Grantee prior to undertaking certain permitted activities is to afford
Grantee an opportunity to ensure that the activities in question are designed
and carried out in a manner consistent with the Conservation Purposes.
Whenever notice is required, Grantor shall notify Grantee in writing not less
than thirty (30) days prior to the date Grantor intends to undertake 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
detail to permit Grantee to make an informed judgment as to its consistency
with the purpose of this Easement.
Grantor hereby relinquishes any right to use the Property in ways that maybe
inconsistent with the Conservation Purposes, or with respect to which
permission of Grantee is expressly required by the terms of this Easement,
until it has notified Grantee in accordance with this Paragraph 17, and
obtained approval therefor from Grantee.
17.3. Response b~Grantee. Grantee shall, within thirty (30) days from receipt of a
request hereunder, respond in writing to any request for approval by Grantor
made in compliance with this Paragraph 17. Until expressly permitted in
writing by Grantee, Grantor shall not commence the activity described in the
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notice. In the event that Grantee fails to respond to such a request within such
period, the requested approval shall be "deemed" granted.
All activities requiring prior written approval by Grantee shall be conducted
consistently with such approval when granted, or, in the case of a "deemed"
approval, pursuant to the preceding pazagraph, conducted consistently with the
terms of the request. Nevertheless, no such "deemed" approval shall allow
any activity on the Property that is inconsistent with the Conservation
Purposes.
In the event that Grantee objects to the proposed activity it shall inform
Grantor in writing of the manner, if any, in which the proposed activity can be
modified to satisfy its objections. Thereafter, Grantor may submit a revised
proposal accommodating the objections, and Grantee shall review and respond
to such revision in the same manner as to the original notice.
Any objection by Grantee to a proposed activity shall be based upon its
opinion that the proposed activity is inconsistent with this Easement, and upon
any specific standards provided for herein. Grantee shall have reasonable
discretion in determining whether or not a proposed activity is consistent with
the terms of this Easement, and any such standards.
)n no event may Grantee permit any activity on the Property that would be
inconsistent with the Conservation Purposes.
17.4. Content of Notices. All required notices hereunder shall be in writing, and
shall provide sufficient information, in addition to any information required by
other provisions of this Easement, to allow, in the case of notice to Grantee,
Grantee to determine whether the proposal is consistent with the Conservation
Purposes. In the case of notice to Grantor, the notice shall inform Grantor of
[he purpose of the notice, and the provision(s) of this Easement with respect to
which the notice has been sent.
18. Recordation. Grantee shall record this Easement in a timely fashion in the official
records of Pitkin County, and may re-record it at any time as maybe required to
preserve its rights in this Easement.
19. General Provisions.
19.1. Controlling Law, etc. The interpretation and performance of this Easement
shall be governed by the taws of the State of Colorado, and the United States.
Venue and jurisdiction for the trial of any alleged violation of this Easement
shall be Pitkin County, Colorado.
19.2. Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Easement shall be liberally construed to effectuate the
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Conservation Purposes and the policy and purpose of C.R.S. § 38-30.5-101 et
seq. If any provision in this Easement is found to be ambiguous, an
interpretation consistent with the Conservation Purposes that would render the
provision valid shall be favored over any interpretation that would render it
invalid.
Furthermore, the Parties intend that the conveyance of this Easement qualify
under § 170(h) of the Code as a "qualified conservation contribution" of a
"perpetual conservation restriction," within the meaning accorded those
phrases by § 1.170A-14 of the Regulations, for federal income and estate and
gib tax purposes. The provisions of this Easement shall be construed
accordingly. Notwithstanding the foregoing, Grantee does not hereby provide
any warranty or other assurance as to the deductibility of the interests hereby
conveyed, and the provisions of this Easement are in no way conditioned upon
such deductibility.
Neither of the Parties shall be deemed the draftsman of this Easement or any
part thereof, each having had the benefit of counsel of their own choosing in
negotiating its terms.
19.3. 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
maybe, shall not be affected thereby.
19.4. Entire Agreement. This Easement, and the Exhibits attached hereto, and the
Baseline Documentation, set forth the entire agreement of the Parties with
respect to this Easement, the Exhibits, and the Baseline Documentation, and
supersede all prior discussions, negotiations, understandings, or agreements
relating to the Easement, the Exhibits, and the Baseline Documentation, all of
which are merged herein.
19.5. No Forfeiture. Nothing contained herein will result in a forfeiture or reversion
of Grantor's title in any respect.
19.6. Successors. The covenants, terms, conditions, and restrictions of this
Easement shall be binding upon, and inure to the benefit of, the Parties and
their successors, and assigns and shall continue as a servitude rtuming in
perpetuity with the Property.
19.7. Termination of Rights and Obligations. Provided a transfer of this Easement
has been accomplished in accordance with Paragraph 17, a Party's rights and
obligations under this Easement terminate upon transfer of the Party's interest
in the Easement or Property, except that liability for acts or omissions
occurring prior to transfer shall survive transfer for the applicable statute of
limitations period.
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19.8. Captions. The captions in this Easement have been inserted solely for
convenience of reference and are not a part of this Easement and shall have no
effect upon construction or interpretation.
19.9. No Third Party Beneficiary This Easement is entered into by and between
Grantor and Grantee, and except as provided herein, is solely for the benefit of
Grantor, Grantee, and ,and their respective successors in interest and assigns,
and for the benefit of the general public. Nevertheless, this Easement does not
create rights or responsibilities in any third parties beyond Grantor, Grantee,
and ,and is not intended to confer standing to bring any enforcement action
upon anyone other than the Parties, except as otherwise provided herein.
19.10. Compliance with Laws. Although the County has a property interest in this
Easement, nothing in this Easement shall be construed to mean that any uses
or structures permitted herein have been given approval by the County in its
governmental capacity. To the extent that any provision of this Easement
differs from the land use regulations of Pitkin County, the more restrictive
provision shall apply. Grantor shall be solely responsible for obtaining any
other approvals necessary for the lawful use of the Property.
19.11. Extineuishment of Development Rights. Grantor hereby grants to Grantee all
development rights associated with the Property, except for the particular
development rights expressly reserved by Grantor in this Easement, or as
otherwise permitted by this Easement; for the limited purpose of ensuring that
such development rights are forever terminated and extinguished and may not
be used on or transferred off of the Property by Grantor or Grantee or any
other party, to any other property, adjacent or otherwise, or used as a credit for
density of development anywhere, by Grantor, Grantee, or any other party.
19.12. Monitorine. Grantee will agree on a monitoring schedule and make a single
visit per year to monitor the property. Either or both of Grantee can monitor
the property, as they agree. Grantee shall make reasonable efforts to cooperate
in and coordinate their efforts in the administration and enforcement of the
Easement.
19.13. Grantor's Title Warranty. Grantor warrants that Grantor has good and
sufficient title to the Property and hereby promises to defend the same against
all claims from persons claiming by, through, or under Grantor.
19.14. Subsequent Liens on the Property. No provisions of this Easement shall be
construed as impairing the ability of Grantor to use this Property as collateral
for subsequent borrowing, provided that any mortgage or lien arising from
such a borrowing would be subordinated to this Easement.
19.15. Joint Oblisation. If more than one owner owns the Property at any time, the
obligations imposed by this Easement shall be joint and several upon each of
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the owners.
19.16. Non-Merger. No merger shall be deemed to have occurred hereunder or under
any documents executed in the future affecting this Easement, unless the parties
expressly state that they intend a merger of estates or interests to occur and the
parties have also obtained the prior written consent of approving such merger of
estates or interests.
19.17. Amendment. If the circumstances arise under which an amendment to or
modification of this Easement would be appropriate, Grantor and both Grantee
are free to jointly amend this instrument; provided that no amendment shall be
allowed that will affect the qualifications of this Easement under any
applicable laws; and provided, further, that the prior written approval of
Grantor, both Grantee, and shall be required, except as otherwise specifically
provided herein. Any amendment must be consistent with the Conservation
Purposes and may not affect the perpetual duration of this Easement. Any
amendment must be in writing, signed by all Parties, and recorded in the
records of the Clerk and Recorder of the County in which the Property is
located. Grantee shall provide with a copy of any recorded Amendment to this
Easement.
19.18. Change of Conditions. A change in the potential economic value of any use that
is prohibited by or inconsistent with this Easement, or a change in any current or
future uses of neighboring properties, shall not constitute a change in conditions
that makes it impossible or impractical for continued use of the Property for
conservation purposes and shall not constitute grounds for terminating the
Easement.
19.19. Definitions.
• The term "Grantor" shall mean Grantor and his successors in title to the
Property, including tenants, lessees, and licensees of the Property or any
portion thereof.
• The term "Grantee" shall mean the Pitkin County Colorado Board of
Commissioners.
• The terms "existing" or "currently," and vaziations thereof, shall mean
existing or current at the time of the recordation of this Easement.
• The term "use," except as otherwise defined in this Easement, shall mean
physical use of the Property or any part thereof, or an activity on the Property
or any part thereof.
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• The terms "Code" and "Regulations" shall mean the Internal Revenue Code
of 1986, as amended, and the Treasury Regulations promulgated thereunder,
respectively, and shall include reference to the comparable provisions of any
subsequent revision of the Code and/or Regulations.
TO HAVE AND TO HOLD unto Grantee, its successors, and assigns forever.
IN WITNESS WHEREOF Grantor and Grantee have executed this Easement on the day
s first above written.
Date:1 Z ~~"
Y. Neiley, Jr.
STATE OF COLORADO )
)ss.
COUNTY OF PITKIN )
The foregoing document was acknowledged before me this2-~ day of ~P~ehiUei'
?007 by Richard Y. Neiley, Jr.
Witness my hand and official seal. .~P~Y PV@~
My commission expires: 70 02 p~~ 2p'~ •~
~~ : NATALLIA F.
.1r~ s KFWRKFIAL
Public •
••ocrifSF
~j Ca~i11i0n E><pires 10p2Rp11
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EXHIBIT "A"
LEGAL DESCRIPTION OF NEILEY PROPERTY
PITKIN COUNTY, COLORADO:
Parcel D of the Amended Final Plat and 1041 Hazard Review Plat, Lots 1, 2, 4, 5 and 6, and
Parcels A, B, C and D, Aspen Village River Homes, Pitkin County, Colorado, recorded in the
Pitkin County Clerk and Recorders office in Plat Book 37 at page 98 as Reception #384279 on
August 10, 1996; and the Minor Plat Amendment and Lot Line Adjustment Plat for Parcels D
and E, Aspen Village River Homes, Pitkin County, Colorado, recorded in the Pitkin County
Clerk and Recorders office in Plat Book 48 at pages 52 and 53 as Reception #427366 on
February 4, 1999; and as depicted on the Neiley Site Plan and 1041 Hazard Review Map
recorded in the Pitkin County Clerk and Recorders office in Plat Book 78 at page 76 as
Reception #523096 on April l9, 2006.
County of Pitkin, State of Colorado
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EXHIBIT "B"
MAP OF MASTER PARCEL DEPICTING THE
PROPERTY (CONSERVATION EASEMENT)
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