HomeMy WebLinkAboutbocc.ord.002.2009CONTRACT ( - , oT)
AN ORDINANCE OF THE COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO, APPROVING ACQUISITION OF COLD
MOUNTAIN TRAIL EASEMENTS
ORDINANCE # 002 -09
RECITALS
1. The Pitkin County Open Space and Trails Board of Trustees is charged with the
responsibility of acquiring open space and trails, and.
2. The Pitkin County Open Space charter allocates 20% of the Open Space Fund to
the acquisition and construction of trails, and
3. The Crystal River Trail is a goal of the Crystal Master Plan, and
4. The Crystal Master Plan also encourages the Open Space Program to acquire public
access points to the Crystal River, and
5. Phase 1 of the Crystal Trail is proposed from Carbondale along the Highway 133
right of way to Thompson Creek and the BRB Resort, and
6. Optimal trail design has suggested that the need to deviate slightly from the
Highway 133 Right of Way onto the edge of one pasture of the Cold Mountain Ranch,
and to also place the trail on the a portion of the Helms and Low Line Ditches, and to
secure a river access point at Cold Mountain Ranch, and
7. In exchange, Cold Mountain Ranch would like some additional sections of
irrigation ditch to be piped, and
8. The cost of the ditch piping will be included in the overall budget for the Crystal
Trail, and
9. The Open Space and Trails Board recommends this exchange.
NOW THEREFORE, BE IT ORDAINED, by the Board of County Commissioners of
Pitkin County, Colorado as follows:
The Chair is authorized to execu" contract with Cold Mountain Ranch, whereby
the County agrees to pipe approximately 955 linear feet of the Helms ditch lying
approximately between 180 +00 and 189 +60 as represented on the trail plans prepared by
JR Engineering for Pitkin County Open Space and Trails (Trail Plans). The County will
also pipe the Low Line Ditch 220' between 249 +00 and 251 +00, provided that consent is
granted for this work by all owners of that ditch. In return, Cold Mountain Ranch will;
Allow Pitkin County to pipe and place in the trail on the Helms ditch from 165 +50 to
180 +00 as represented on the Trail Plans, and to pipe and put a trail over the Low Line
Ditch, from 251 +00 to 255 +25 as represented on the Trail Plans, and Cold Mountain will
grant Pitkin County a trail easement to allow us to encroach approximately 10' on the
Cold Mountain Ranch pasture between Highway 133 and the Crystal River over a
distance of approximately 775' adjacent the state right of way approximately between
131 +25 and 135 +50 and between 138 +75 and 142 +25 as represented on the Trail Plans,
following approval of the contract form by the County Attorney's office and Open Space
Director, and the Chair is further authorized to execute such other documents, as may be
necessary to finalize this transaction following approval of the form of those documents
by the County Attorney's office and Open Space Director.
INTRODUCED, FIRST READ, AND APPROVED ON THE 14th DAY OF
January, 2009.
NOTICE OF PU LIC HEA NG PUBLISHED IN THE ASPEN TIMES
WEEKLY ON THE DAY OF,-J&kUu-V +[ 2009.
APPROVED UPON SECOND READING AND PUBLIC HEARING ON
THE 28 DAY OF JANUARY 2009.
PUBLISHED AFTE DOPTION E WEEKEND EDITION OF THE
ASPEN TIMES ON THE DAY OF 1 y , 2009.
A TEST: BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
Je ette Jones Patti Kay - Clapper
De utv Clerk Chair
Date: CV off=® 9
APPROVED
*Jo ly
A or y
ill, er ector
Open Space and Trails Program
M
Hila�Y Fletcher O
Couiit'y Manager
4
0
2/15/2008
CONTRACT FoR Trai t Basement and
River Access Area.
(Cold Mountain Ranch LLLP — Pitkin County)
THIS CONTRACT FOR BARGAIN SALE OF TRAIL EASEMENTS (the
"Agreement ") is entered into this.2s day of �� • , 2008, by and between
Cold Mountain Ranch LLLP (facsimile number; _970- 963 -2019) (the "Grantor ") and
the Board of County Commissioners of Pitkin County (facsimile number: (970) 920-
5198) (the "County "). The following exhibits are attached to this Agreement:
Exhibit A - Map of River Access Area
Exhibit B - Trail Easement and River Access Deeds
RECITALS:
A. Grantor owns approximately 620 acres in Pitkin and Garfield Counties (the
"Property "), and is the sole owner of the Helms Ditch and partial owner of the
Low Line Ditch; and,
B. The County desires to construct a bicycle trail along Highway 133 which traverses
Cold Mountain Ranch, and,
C The County desires to encroach off the Highway 133 Right of Way onto the edge
of one pasture of the Cold Mountain Ranch, and to also place the trail on portions
of the Helms and Low Line Ditches which will require piping those sections; and,
D. The County also desires to secure a river access easement near the northern
boundary of Cold Mountain Ranch (the trail and river access easements shall be
collectively referred to as "Trail Easements. "), and
E Contingent on its approval, in its sole discretion, of all engineering, design, and
specifications related to ditch improvements, Grantor is willing to convey the trail
and river access easements and to allow piping of the ditches in exchange for
piping of additional sections of the ditches; and,
F. Cold Mountain Ranch needs to ensure that there is no interruption in water
transmission between May 1 and October 1 for the Helms ditch and October 15
for the Low Line ditch due to any improvement contemplated herein; and,
G. The parties also acknowledge that the County is presently seeking permission
from the Colorado Department of Transportation ( "CDOT ") for the placement of
the trail in the state right of way that traverses Cold Mountain Ranch, and that the
County must demonstrate to CDOT that the Grantor has agreed to the trail
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easement, and therefore, the County may require a trail easement prior to the
completion of the County's obligations herein; and,
H. The agreement contemplated herein is contingent on the County obtaining the
CDOT permit and also upon the County entering into a construction contract for
the construction of the trail; and,
I. To effectuate the exchange contemplated herein, the Parties therefore anticipate a
sequence whereby the Cold Mountain will first review the final construction
details of the ditch piping and the County will review the title commitment for the
trail easement, if each are satisfied, then Cold Mountain will convey the trail
easement, as required by CDOT to obtain a final permit, then the County must be
able to secure a construction contract with available funds. If the County is
unable to do so, the trail easement will terminate. However, if all the pipe work
and trail construction are completed, then Cold Mountain will lastly convey the
River Access.
I. AGREEMENT:
COUNTY OBLIGATIONS; Subject to the terms and conditions of this Agreement,
A. The County agrees to pipe approximately 1,300 linear feet of the Helms ditch
lying between 180 +00 and 193 +00 as represented on the February 9, 2008 trail plans
prepared by JR Engineering for Pitkin County Open Space and Trails ( "Trail Plans ").
The County will also pipe the Low Line Ditch 220' between 249 +00 and 251 +00.
B. The County further agrees that the installation of improvements to the ditches
contemplated in this agreement will not result in any impairment of water transmission
between May 1 and October 1 for the Helms ditch and October 15 for the Low Line ditch,
and that, in the event such impairment results from the actions of the County or its agents,
Grantor will be entitled to a penalty payment of $750 /day for the Helms ditch and $ 1,500
/ day for the Low Line ditch for the duration of the impairment during that period. Any
penalties paid for impairment of the Low Line Ditch will be distributed to all the co-
owners of the. ditch commensurate with their relative shares.
C. The County will erect fencing on the North and the South Boundary of the river
access easement to prevent trespass onto other portions of Cold Mountain Ranch and will
insure Cold Mountain Ranch against liability from users of this parcel and persons who
trespass from the easements onto Cold Mountain Ranch.
D. The County further recognizes that Cold Mountain Ranch has historically
utilized the CDOT right of way for agricultural operations and agrees that access by farm
vehicles and livestock across and along any trail placed in said right of way may continue
as needed for the operation of the ranch.
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COLD MOUNTAIN OBLIGATIONS; Subject to the terms and conditions of this
Agreement, Cold Mountain Ranch agrees to the following;
A. Cold Mountain Ranch agrees the County may pipe and place the trail on the
Helms ditch from 169 +50 to 180 +00 as represented on the Trail Plans, and to pipe
and put a trail over the Low Line Ditch, from 251 +00 to 255 +25 as represented
on the Trail Plans; and,
B. Cold Mountain Ranch will grant the County a trail easement, in substantially the
form attached hereto as Exhibit B to allow the county to encroach approximately
10' on the Cold Mountain Ranch pasture between Highway 133 and the Crystal
River over a distance of approximately 775' adjacent the state right of way
between 131 +25 and 135 +50 and between 138 +75 and 142 +25 as represented on
the Trail Plans. If required by the Colorado Department of Transportation as a
condition of the permit for the Crystal Trail, Cold Mountain Ranch agrees to
convey the trail easement prior to the piping of the ditches provided however that
the language of the trail easement shall provide that it will be extinguished if the
County's obligations hereunder are not fully satisfied by December 30, 2010; and,
C. Once all of the County's obligations hereunder are satisfied, Cold Mountain
Ranch will grant a public access easement in substantially the form attached
hereto as Exhibit B or fee simple title in Cold Mountain's discretion over a flat
area of land approximately one acre in size between the state right of way and the
Crystal River near the northern boundary of Cold Mountain Ranch in the
approximate location depicted on Exhibit A. The public will be allowed on this
property only from dawn to dusk. The County agrees not to establish a parking
area at this location, and agrees to use good faith efforts to enforce limitations on
public use. Further, whereas this access area is located in Garfield County, the
obligation of Cold Mountain Ranch to convey this public access area is also
contingent on the adoption of a mechanism acceptable to Cold Mountain Ranch
for the enforcement of public use restrictions by the Garfield County Sherriff,
Pitkin County Open Space Ranger, or other acceptable entity. The public access
rights addressed in this subparagraph shall also be subject to a management plan
which sets for the time and nature of allowable public uses. Cold Mountain
Ranch will retain the right to enforce the terms of the management plan against
any third party. If repeated violations of the management plan occur, the County
agrees to amend the management plan as needed to specifically address such
enforcement problems.
D. Cold Mountain Ranch will also assist the County in executing such documents as
may be required by CDOT that are otherwise consistent with the agreement
memorialized herein.
2. CONVEYANCE DOCUMENTS. Grantor shall execute and deliver to County
the Trail Easements and River Access Easement free and clear of all liens,
encumbrances and other exceptions, except such easements, restrictions and other
exceptions as are of record and are approved by County during the Inspection
Period.
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3. CONDITION OF THE PROPERTY, REPRESENTATIONS. As of the date
of this Agreement and the date of Closing, Grantor warrants and represents the
following:
3.1. Grantor is the record owner of the Property to be encumbered by the Trail
Easements hereunder. Upon the Closing Date, County will have good and
marketable title to the Trail Easements.
3.2. There are no actions, suits, proceedings or investigations pending or, to
Grantor's knowledge threatened, against or affecting the Property, or
arising out of Grantor's conduct on the Property.
3.3. To Grantor's best knowledge, Grantor is in substantial compliance with
the laws, orders, and regulations of each governmental department,
commission, board; or agency having jurisdiction over the Property in
those cases where noncompliance would have a material adverse effect on
the Property.
3.4. Other than this Agreement, Grantor is not party to nor subject to or bound
by any agreement, contract or lease of any kind relating to the Property.
There are no rights of possession to the Property or options or rights of
first refusal in third parties, nor rights of access across the Property by
third parties.
3.5. The Property, to the best of Grantor's knowledge, is not in violation of any
federal, state or local law, ordinance or regulation relating to
environmental conditions on, under or about the Property, including, but
not limited to, soil and groundwater conditions. Neither Grantor, nor to
the best of Grantor's knowledge any third party, has used, generated,
manufactured, refined, produced, processed, stored or disposed of on, or
under the Property or transported to or from the Property any Hazardous
Materials nor does Grantor intend to use the Property prior to closing date
for the purpose of generating manufacturing, refining, producing, storing,
handling, transferring, processing or transporting Hazardous Materials.
For the purposes hereof, "Hazardous Materials" does not mean any typical
agricultural chemicals such as herbicides and pesticides utilized on
properties of this type in Pitkin County, provided that all such chemicals
are used in accordance with applicable laws and manufacturer's
specifications; but shall mean any flammable explosives, radioactive
materials, asbestos, organic compounds known as polychlorinated
biphenyls, chemicals known to cause cancer or reproductive toxicity,
pollutants, contaminants, hazardous wastes, toxic substances or related
materials, including, without limitation, any substances defined as or
included in the definition of "hazardous substances ", "hazardous material"
or "toxic substances" in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sec.
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9601, et sea. the.Hazardous Materials Transportation Act, 49 U.S.C. Sec.
1801, et sea., the Resource Conservation and Recovery Act, 42 U.S.C.
Sec. 6901 et se g, or any other federal, state or local statute, law,
ordinance, code, rule, regulation, order, decree or other requirement of
governmental authority regulating, relating to or imposing liability or
standard of conduct concerning any hazardous, toxic or dangerous
substance or material, as now or at any time hereafter in effect, and in the
regulations adopted, published and/or promulgated pursuant to said laws.
To the best of Grantor's knowledge there is one underground storage tank
situated in the Property and to the best of Grantor's knowledge have no
other such tanks been previously situated thereon.
3.6. No representation, warranty, or statement made herein by Grantor contains
any untrue statement of any material fact or omits to state any material fact
necessary in order to make such representation, warranty, or statement not
misleading.
3.7. Grantor is duly authorized and has taken all necessary actions to execute
and perform this Agreement and this Agreement is enforceable against
Grantor in accordance with its terms.
4. PRESERVATION OF PROPERTY; RISK OF LOSS. Except as otherwise set
forth herein, Grantor agrees that the Property shall remain as it now is until
completion of the mutual obligations contemplate herein, and that Grantor agrees
that it shall neither use nor consent to any use of the Property for any purpose or in
any manner which would adversely affect County's intended acquisition of the
Trail Easements and River Access Easement.
5. COSTS AND FEES. The premium for the title insurance policy described above
shall be paid by County. Per page recording costs for the Trail Easements and
River Access Easement, shall be paid by County.
6. DEFAULT.
6.1. Grantor's Remedies. If County shall fail to consummate the transaction
contemplated hereunder for any reason, or if such transaction shall fail to
close for any reason other than default by Grantor, Grantor may terminate
this Agreement and be released from its obligations hereunder, and any
easement or authorization for use of ditches shall be extinguished.
Grantor shall have the right to seek and recover from County all damages
suffered by Grantor as a result of County's default in the performance of
its obligations hereunder, including reasonable attorney fees and costs.
6.2. County's Remedies. If Grantor shall fail to consummate the transaction
contemplated hereunder for any reason, or if such transaction shall fail to
be completed for any reason other than default by County, County may
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elect, at County's sole option: (i) To terminate this Agreement and be
released from its obligations hereunder, or (ii) To proceed against Grantor
for specific performance of this Agreement. In either event, County shall
have the right to seek and recover from Grantor all damages suffered by
County as a result of Grantor's default in the performance of its
obligations hereunder, including reasonable attorney fees and costs.
7. NOTICES. All notices required or permitted hereunder will be deemed to have
been delivered only upon actual delivery thereof. All notices required or permitted
hereunder shall be given by hand delivery, or sent by telecopier, or sent by Federal
Express or other courier for delivery at the soonest possible time offered by such
courier, directed as follows:
If to Grantor:
William E. L. Fales, general partner
Cold Mountain Ranch, LLLP
4239 Highway 133
Carbondale, CO 81623
Phone: 970 - 963 -2019
Fax Number:
Email Address: wmfales @aol.com
If to Countv:
Pitkin County Board of County Commissioners
Attn. Dale Will, Director,
Pitkin County Open Space and Trails
530 E. Main St.
Aspen, CO 81611
Fax: 970 920 -5198
With a copy to:
John Ely, County Attorney
530 E. Main St.
Aspen, CO 81611
Fax: 970 920 -5198
8. MISCELLANEOUS.
8.1 Broker's Commission. Grantor and County each represents to the other that
they have not contracted with any broker or finder with regard to this transaction.
Each party agrees to indemnify, defend and hold harmless the other from and
against any and all liability, claims, demands, damages and costs of any kind
arising out of or in connection with any broker's or finder's fee, commission or
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charges claimed to be due any person in connection with such person's conduct
respecting this transaction except as set forth herein.
8.2 Binding Effect. The terms and conditions of this Agreement shall be binding
upon and shall inure to the benefit of the parties' heirs, executors, administrators,
successors and assigns.
8.3 Exhibits. The exhibits hereto constitute an integral part of this Agreement
and are hereby incorporated herein.
8.4 Counterparts, Facsimile Signatures. This Agreement may be executed in
counterparts, all of which shall constitute one agreement which shall be binding
on all of the parties, notwithstanding that all of the parties are not signatories to
the original or the same counterpart. Signatures may be evidenced by facsimile
transmission and at the request of any party documents with original signatures
shall be provided to the other party.
8.5 Severabilitv. If any provision of this Agreement shall be held invalid, the
other provisions hereof shall not be affected thereby and shall remain in full force
and effect.
8.6 Entire Agreement. This Agreement represents the entire agreement of the
parties and may not be amended except by a writing signed by each party thereto.
8.7 Authority. Each party to this Agreement warrants to the other that the
respective signatories have full right and authority to enter into and consummate
this Agreement and all related documents.
8.8 Merger. The obligations, covenants, representations, warranties and remedies
set forth in this Agreement shall not merge with transfer of title but shall remain
in effect after the parties obligations hereunder are otherwise fulfilled.
8.9 Further Actions. Each party shall execute and deliver or cause to be executed
and delivered any and all instruments reasonably required to convey the easements
to County and to vest in each party all rights, interests and benefits intended to be
conferred by this Agreement.
8.10 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado.
8.11 Offer. When signed and delivered to the Grantor by County, this Agreement
will constitute an offer to the Grantor that can be accepted only by the Grantor
signing and delivering to County an executed original of this Agreement. County
may withdraw such offer in writing at any time prior to its acceptance.
8.12 Labor and Material. Grantor shall deliver to County at settlement an
affidavit, on a form acceptable to County's lender, if applicable, signed by Grantor
that no labor or materials have been furnished to the Property within the statutory
period for the filing of mechanics' or materialmen's liens against the Property. If
labor or materials have been furnished during the statutory period, Grantor shall
deliver to County an affidavit signed by Grantor and the person or persons
furnishing the labor or materials that the costs thereof have been paid.
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9. SATURDAYS, SUNDAYS, HOLIDAYS. If the final date of any time
period of limitation set out in any provision of this agreement falls on a Saturday, Sunday
or a legal holiday under the laws of the State of Colorado, then the time of such period
shall be extended to the next day which is not a Saturday, Sunday or legal holiday.
10. GRANTOR'S CONTINGENCY.
The obligations of Cold Mountain Ranch hereunder are specifically contingent on
its approval, in its sole discretion, of all engineering and design specifications
related to piping of the ditches and any related improvements to head gates or
other ditch components.
11. COUNTY'S CONTINGENCY; FORMAL COUNTY APPROVAL.
The obligations of the County hereunder are specifically contingent upon the following:
A. Adoption of an Ordinance authorizing the purchase of the Property by the Board
of County Commissioners of under terms substantially the same as set forth in this
Contract.
B. Consent to the Low Line Ditch improvements by all co- owners of that ditch.
C. County obtaining a permit, license, and such other approvals as may be necessary
from the CDOT to allow construction of the Crystal Trail from Carbondale to the
BRB subdivision.
D. County appropriation or otherwise assembling adequate funds to enter into a
construction contract for the construction of the Crystal Trail from Carbondale to
the BRB subdivision.
E. County's satisfaction, in its sole discretion, upon the title review related to the
Trail and River access easements. Not later than fifteen (15) days after the
Effective Date, Grantor shall provide, at County's expense, to County: a Title
Commitment, together with legible copies of the deed or deeds by which the
Grantor holds title to the Property, legible copies of any instruments listed in the
legal description for the Property, and legible copies of all exceptions to title,
pursuant to which the Title Company shall issue to County a standard coverage
owner's policy of title insurance, including "gap" and mechanic's lien coverage,
insuring title and access to the Trail Easements and River Access Easement as of
the date of conveyance in the amount of the $100,000; (b) a Certificate of Taxes
Due evidencing that all taxes owing on the Property have been paid in full; (c) a
copy of the current and previous year's Notice of Assessment, or other satisfactory
evidence of the current and previous year's assessed value and assessment
category for the Property.
12. COUNTY WARANTEE OF DITCH IMPROVEMENTS. In the event that
any ditch improvement undertaken hereunder requires replacement or repair, the County
will make such replacements or repairs at its sole expense. After five years from the
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completion of the improvements, normal maintenance of the Helms ditch pipe lying
between 180 +00 and 189 +60 will become the sole responsibility of the Grantor. In no
event shall any owner of either the Low Line Ditch or Helms Ditch be precluded from
making immediate repairs due to the presence of the Crystal Trail.
13. EFFECTIVE DATE. The Effective Date of this Agreement shall be the last date
signed by either party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
GRANTOR
William Fates, general partner
Cold Mountain LLLP
COUNTY:
By: &, / -- C(�
' T T-`� —ta °Chair
�+r-t!/a�,��
Board of County Commissioners
Date: 07 0? S' e�
Date: Q / — x - 0.7
Re o en ed r pr val by
— 1 =�A
Dale ill, Director, Pitkin County Open Space and Trails
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Cold Mountain Trail Easement 2/15/2008
EXHIBIT B TO CONTRACT FOR TRAIL EASEMENT AND RIVER,
ACCESS AREA
TRAIL EASEMENT
THIS PUBLIC TRAIL EASEMENT (the "Trail Easement "), made and entered
into this _ day of , 2008, by and between Cold Mountain Ranch, LLLP
( "Grantor "), the County Commissioners of Pitkin County, a corporate and body politic
( "Grantee "),
RECITALS:
1. Grantor is the record owner of certain real property located in
Pitkin County which lies adjacent Highway 133, and
2. Grantee is seeking to construct a bicycle - pedestrian trail along Highway
133 ( "Crystal Trail ") and desires to encroach on Grantor's property for the purpose of
avoiding obstacles within the highway right of way, and
3. Grantor desires by this instrument to establish and to grant to Grantee a
perpetual Trail Easement over the property of Grantor as one link in the Crystal Trail, and
4. Grantee desires by this instrument (a) to accept said Trail Easement
subject to the restri ctions set forth herein, and (b) to assume certain responsibilities in
connection therewith.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements set forth herein, and for other good and valuable considerations, the receipt
and sufficiency of which are hereby acknowledged, Grantor and Grantee agree as
follows:
1. Grant of Public Trail Easement. Grantor hereby grants, transfers
and conveys unto Grantee and its successors and assigns, for the use and benefit
of the general public a 10' wide non - exclusive perpetual Trail Easement to be
located as depicted on Exhibit A. Use of the trail easement shall be exclusively
non - motorized except for equipment as may be needed for trail construction or
maintenance.
2. Grantee hereby accepts the Public Trail Easement in an "as is"
condition, subject to the restrictions herein contained, and subject to all patent or
latent defects or problems of any kind or nature. Such acceptance does not
13
Cold Mountain Trail Easement 2/15/2008
preclude improvement or maintenance activities within the Public Trail Easement
insofar as such activities may be allowed or required by this Easement.
Trail Use Restrictions.
(a) Public use of the Trail Easement shall be exclusively for non
motorized recreation such as hiking, horseback riding, bicycling and nordic
skiing. Grantee may further restrict the public uses allowed by this Easement,
including limitations on the times and numbers of'visitation, if such restrictions
are necessary for the protection of ecological resources including, but not limited
to, wildlife and vegetation on adjacent public lands, and agricultural activities on
adjacent lands retained by the Grantor.
(b) The Trail Easement is governed by the rules and regulations and
other provisions of Title XII of the Pitkin County Code, as said Title XII may be
amended or recodified from time to time, provided always that the provisions of
this Trail Easement shall control wherever they are more restrictive than the
provisions of said Title XII.
(c) Trail Easement Care and Maintenance. Prior to allowing public
use of the trail easement, Grantee will erect a fence on the boundary between the
Trail Easement and the balance of the Grantor's lands. Such fence shall be
adequate to prevent public use of the trail from impairing agricultural uses on
Grantor's lands, and shall be constructed at the Grantee's expense. Grantee
hereby assumes complete responsibility for and agrees to care for, groom and
maintain the Trail Easement 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 provided however that Grantor is
not responsible for said damage if caused by farm equipment, livestock, horses
or third parties. Grantee's maintenance responsibilities shall include, but not be
limited to, trash and debris removal, keeping the Trail clear of rocks, vegetation
and other obstructions, grooming as needed, controlling erosion and water
runoff, and general care and maintenance.
4. Grantor's immunitv and Grantee's Obligation to insure. The parties
expressly acknowledge that the Trail Easement is granted for a "recreational
purpose" under C.R.S. Section 33 -41 -101, et seq., 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 M. By granting the Trail Easement, Grantor shall have no obligation
to repair, clear or otherwise maintain the area within the Trail Easement, 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 of the
Trail Easement for public non - motorized travel or otherwise, or due to the
condition of the Public Trail Area.
/y
Cold Mountain Trail Easement 2/15/2008
Grantee further agrees to add Grantor (and its successors and assigns in
the ownership of the underlying real property traversed by the Trail Easement, or
any part thereof) as additional named insureds on its comprehensive general
liability insurance policy, which insurance shall be maintained by the Grantee to
provide protection against liability from claims arising out of the use of the Trail
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 her 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.
5. Attornevs' Fees. In the event the interpretation or enforcement of
this Trail Easement should ever become the subject of litigation between Grantor
(or her successors and assigns in the record ownership of the underlying real
property traversed by the Trail Easement, or any part thereof) and Grantee, the
prevailing party shall be entitled to an award of its reasonable costs and
attorneys' fees incurred in connection therewith.
6. Binding Effect. This Easement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns forever including all future record owners
of the underlying real property traversed by the Trail Easement, or any part
thereof. The benefits and burdens hereof shall also run with the title to the
underlying real property and all parts thereof traversed by the Trail Easement.
This Easement may only be amended by a writing signed by Grantee and by the
then - record owners of the underlying real property traversed by the Trail
Easement.
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals as of the day and year first above written.
GRANTOR:
By:
William Fales, General Partner
Cold Mountain Ranch, LLLP
STATE OF COLORADO )
. ) ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this day of
, 2008, by William Fales, of Cold Mountain Ranch, LLLP
Witness my hand and official seal.
i
Cold Mountain Trail Easement 2/15/2008
My commission expires:
Notary Public
GRANTEE:
Pitkin County, Colorado
LE
Jack Hatfield, Chairman
ATTEST:
STATE OF COLORADO
ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this day of
, 2008, by Jack Hatfield, Chairman of the Board of County
Commissioners of Pitkin County, Colorado, and attested to
by
Witness my hand and official seal.
My commission expires:
Notary Public
Cold Mountain Trail Easement 2/15/2008
Exhibit A- Description of Trail
(Legal Description to be added at time of conveyance)
/1
Cold Mountain River Access Easement 2/15/2008
EXHIBIT B TO CONTRACT FOR TRAIL EASEMENT AND RIVER
ACCESS AREA
RIVER ACCESS EASEMENT
THIS PUBLIC RIVER ACCESS EASEMENT (the "River Access Easement "),
made and entered into this , day of , 2008, by and between Cold Mountain
Ranch, LLLP ( "Grantor "), the County Commissioners of Pitkin County, a corporate and
body politic ( "Grantee "),
RECITALS:
1. Grantor is the record owner of certain real property located in
Pitkin County which lies adjacent Highway 133, and
2. Grantee is seeking to construct a bicycle -trail along Highway 133
("Crystal Trail ") and desires to add a river access area as an amenity along the trail, and
3. Grantor desires by this instrument to establish and to grant to Grantee a
perpetual River Access Easement which will allow trail users a respite on the west bank
of the Crystal River on the property of Grantor, and
4. Grantee desires by this instrument (a) to accept said River Access
Easement subject to the restrictions set forth herein, and (b) to assume certain
responsibilities in connection therewith.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements set forth herein, and for other good and valuable considerations, the receipt
and sufficiency of which are hereby acknowledged, Grantor and Grantee agree as
follows:
1. Grant of Public River Access Easement. Grantor hereby grants,
transfers and conveys unto Grantee and its successors and assigns, for the use
and benefit of the general public a ft. sq. wide non - exclusive perpetual
River Access Easement to be located as depicted on Exhibit A. Use of the
River Access easement shall be exclusively for passive recreation between
sunrise and sunset.
2. Grantee hereby accepts the Public River Access Easement in an "as
is" condition, subject to the restrictions herein contained, and subject to all
patent or latent defects or problems of any kind or nature. Such acceptance does
not preclude improvement or maintenance activities within the Public River
Cold Mountain River Access Easement 2/15/2008
Access Easement insofar as such activities may'be allowed or required by this
Easement.
River Access Use Restrictions.
(a) Public use of the River Access Easement shall be exclusively
between sunrise and sunset for passive recreation such as angling, wildlife
viewing and the contemplation of scenic beauty. Grantor and Grantee may
further adopt a Management Plan which may further restrict the public uses
allowed by this Easement, including limitations on the times and numbers of
visitation, and range of allowable activities, where such restrictions are necessary
for the protection of wildlife, vegetation, aquatic habitat and agricultural
activities on adjacent lands retained by the Grantor. The terms of the
Management Plan will be enforceable against third parties by both the Grantor
and Grantee.
(b) Grantee agrees to act in good faith to ensure that all limitations on
the public use of the River Access Easement Area are enforced. Prior to the
execution of this Easement, Grantee will undertake appropriate agreements with
Garfield County as may be needed to ensure that the terms of this easement are
enforced, including, but not limited to, preventing trespass by persons or pets
onto the adjacent lands retained by the Grantor. Grantee further agrees not to
establish any designated parking area near the River Access Easement area.
(c) River Access Easement Care and Maintenance. Prior to allowing
public use of the River Access easement, Grantee will erect a fence on the
boundary between the River Access Easement and the balance of the Grantor's
lands. Such fence shall be adequate to prevent public use of the River Access
from impairing agricultural uses on Grantor's lands, and shall be constructed at
the Grantee's expense. Grantee hereby assumes complete responsibility for and
agrees to care for, groom and maintain the River Access Easement area 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 provided however that Grantor is not responsible for said damage if
caused by farm equipment, livestock, horses or third parties. Grantee's
maintenance responsibilities shall include, but not be limited to, trash and debris
removal, erosion control, and general care and maintenance.
4. Grantor's immunitv and Grantee's Obligation to insure. The parties
expressly acknowledge that the River Access Easement is granted for a
"recreational purpose" under C.R.S. Section 33 -41 -101, et seq., 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 the River Access Easement, Grantor
shall have no obligation to repair, clear or otherwise maintain the area within the
Iq
Cold Mountain River Access Easement 2/15/08
River Access Easement, 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 of the River Access Easement for public non -
motorized travel or otherwise, or due to the condition of the Public River Access
Area.
Grantee further agrees to add Grantor (and its successors and assigns in
the ownership of the underlying real property traversed by the River Access
Easement, or any part thereof) as additional named insureds on its
comprehensive general liability insurance policy, which insurance shall be
maintained by the Grantee to provide protection against liability from claims
arising out of the use of the River Access Easement. Such insurance shall be
carried in amounts riot 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 her 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.
5. Attornevs' Fees. In the event the interpretation or enforcement of
this River Access Easement should ever become the subject of litigation
between Grantor (or her successors and assigns in the record ownership of the
underlying real property traversed by the River Access Easement, or any part
thereof) and Grantee, the prevailing party shall be entitled to an award of its
reasonable costs and attorneys' fees incurred in connection therewith.
6. Binding Effect. This Easement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns forever including all future record owners
of the underlying real property traversed by the River Access Easement, or any
part thereof. The benefits and burdens hereof shall also run with the title to the
underlying real property and all parts thereof traversed by the River Access
Easement. This Easement may only be amended by a writing signed by Grantee
and by the then - record owners of the underlying real property traversed by the
River Access Easement.
�i'1
Cold Mountain River Access Easement 2/15/08
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals as of the day and year first above written.
GRANTOR:
By:
William Fales, General Partner
Cold Mountain Ranch, LLLP
STATE OF COLORADO )
} ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this day of
2008, by William Fales, of Cold Mountain Ranch, LLLP
Witness my hand and official seal.
My commission expires:
Notary Public
GRANTEE:
Pitkin County, Colorado
By:
Jack Hatfield, Chairman
ATTEST:
(COUNTY OF PITKIN and COUNTY OF EAGLE)
The foregoing instrument was acknowledged before me this day of
, 2008, by Jack Hatfield, Chairperson of the Board of County
Commissioners of Pitkin County, Colorado, and attested to
by
Witness my hand and official seal.
My commission expires:
Notary Public
9�
Cold Mountain River Access Easement 2/15/2008
Exhibit A- Legal Description of River Access Area
(to be added upon conveyance)
f�
Cold Mountain Contract 6/23/2009 draft
CONTRACT FOR SALE OF LAND AND,
CONSERVATION EASEMENT
(Cold Mountain Ranch — Pitkin County)
THIS CONTRACT FOR SALE OF LAND AND CONSERVATION
EASEMENT (the "Agreement ") is entered into this day of X -u w e. 2009 by and
between Cold Mountain Ranch LLLP, (the "Seller ") and the Board of County
Commissioners of Pitkin County (facsimile number: (970) 920 -5198) (the "Buyer ").
The following exhibits are attached to this Agreement:
Exhibit A -
Description of Property
Exhibit B -
Map of Property
Exhibit C-
Water Rights
Exhibit D-
Conservation Easement
Exhibit E - Description of River Access Area
Exhibit F- Resolution Regarding Land Use Approvals
RECITALS:
011
N3
I--*��
A. Seller is the owner of real property now commonly known as Cold Mountain V
Ranch ( "the Ranch "), which is located just south of Carbondale, Colorado, in
unincorporated parts of Pitkin and Garfield Counties. The Ranch is described on
Exhibits A and B attached hereto.
B. Seller desires to convey a conservation easement in the fonn set forth in Exhibit D
( "Conservation Easement ") as described below, and generally shown on Exhibit
B and over the water rights described in Exhibit C, attached hereto (the "Water
Rights "), and Seller further desires to convey a fee interest over approximately
2.5 acres adjacent Highway 133 ( "River Access Area ") in the location shown on
Exhibit B and described on Exhibit E. The Conservation Easement and the River
Access Area shall be referred to collectively herein as the "Property."
C. Pitkin County desires to acquire the Property for a purchase price of $7,500,000.
AGREEMENT
1. CONVEYANCE OF CONSERVATION EASEMENT.
A. The Conservation Easement Deed shall be in substantially the same form
attached as Exhibit D. At the Seller's election, the Colorado Cattleman's Agricultural
Land Trust may also be a grantee of the Conservation Easement, provided however, that
Contract for Sale of Conservation Easement and River Access Area.
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O
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Cold Mountain Contract 6/23/2009 draft
any costs associated with therewith shall be borne by the Seller, and further provided that
the Conservation Easement is structured to ensure there is no impairment of the rights the
Buyer would otherwise acquire as the sole grantee.
2. CONVEYANCE OF RIVER ACCESS AREA. The Seller shall convey the
River Access Area, in the location shown on Exhibit B, as a fee simple interest
subject to the additional requirements below. Buyer agrees that the River Access
Area shall be closed to public use between sundown and sunrise, and that the
Buyer will use good faith efforts to ensure that this limitation on public use is
enforced.
A. TRANSFER OF TITLE. Subject to tender or payment at Closing as
required herein and compliance by Buyer with the other terms and provisions
hereof, Seller shall execute and deliver a good and sufficient special warranty
deed to Buyer at Closing, conveying the River Access Area free and clear of all
taxes except the general taxes for the year of Closing. Except as provided herein,
title shall be conveyed free and clear of all liens, including any governmental liens
for special improvements installed as of the date of Buyer's signature hereon,
whether assessed or not. Title shall be conveyed subject to:
a. those specific Exceptions described by reference to recorded
documents as reflected in the Title Documents accepted by Buyer in
accordance with Title Review,
b. distribution utility easements,
C. those specifically described rights of third parties not shown by the
public records of which Buyer has actual knowledge and which were
accepted by Buyer in accordance with Matters not Shown by the Public
Records and Survey Review,
d. inclusion of the River Access Area within any special taxing
district,
e. the benefits and burdens of any declaration and party wall
agreements, if any, and
f. other:
B. PAYMENT OF ENCUMBRANCES. Any encumbrance required to be
paid shall be paid at or before Closing.
C. CLOSING COSTS, DOCUMENTS AND SERVICES. Buyer and
Seller shall pay, in Good Funds, their respective Closing costs and all other items
required to be paid at Closing, except as otherwise provided herein. Buyer and
Seller shall sign and complete all customary or reasonably required documents at
or before Closing. Fees for real estate Closing services shall be paid by Buyer.
Contract for Sale of Conservation Easement and River Access Area. Page 2
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Cold Mountain Contract 6/23/2009 draft
D. PRORATIONS. 2008 Taxes on the River Access Parcel shall be paid by
the Seller.
3. BUYERS RESPONSIBILITY TO PROCESS SUBDIVISION. Buyer
acknowledges that it is solely responsible for submitting any subdivision
application needed to create the River Access Area, and that this application will
be reviewed in accordance with all applicable laws and regulations.
4. PURCHASE PRICE. The purchase price for the Property, including earnest
money, shall be Seven Million Five Hundred and no /100s Dollars ($7,500,000.00)
(the Purchase Price "). The Purchase Price shall be paid by Buyer to Seller as
follows:
A. EARNEST MONEY. Buyer shall tender to Pitkin County Title, Inc.
( "the Title Company ") earnest money in the amount of $100,000.00 at the time it
delivers a fully signed copy of this Agreement to Seller. Any and all monies paid
by Buyer prior to closing shall be placed in an insured, interest bearing money
market -type account with a local commercial bank with all interest thereon to
accrue for the benefit of Buyer. If Buyer shall ever be in default under this
Agreement resulting in a forfeiture of its earnest money, Seller shall be entitled, as
its sole and separate property, all interest earned on said earnest money.
B. CLOSING FUNDS. At closing, the balance of the Purchase Price shall
be paid to Seller in cash, certified funds, by wire transfer or other immediately
available funds.
5. CLOSING DATE. The closing of the transaction contemplated hereunder (the
"Closing ") shall be held at the office of the Title Company on or before July 30,
2009, unless this date is extended by mutual consent.
6. INSPECTION AND REVIEW.
A. EVIDENCE OF TITLE.
a. Title Commitment. Seller shall cause to be furnished to Buyer, at
Buyer's expense, a current commitment for owner's title insurance policy
(Title Commitment) in an amount equal to the Purchase Price no later than
ten (10) days after full execution of this Contract. At Buyer's expense,
Seller shall cause the title insurance policy to be issued and delivered to
Buyer as soon as practicable at or after Closing. If a title insurance
commitment is furnished, it shall commit to delete or insure over the
standard exceptions which relate to:
(1) parties in possession,
(2) unrecorded easements,
(3) survey matters,
Contract for Sale of Conservation Easement and River Access Area,
Page 3
Cold Mountain Contract 6/23/2009 draft
(4) any unrecorded mechanic's liens,
(5) gap period (effective date of commitment to date deed is recorded),
(6) unpaid taxes, assessments and unredeemed tax sales prior to the
year of Closing.
Any additional premium expense to obtain this additional coverage shall
be paid by Buyer.
b. Conies of Exceptions. Seller, at Buyer's expense, shall furnish to
Buyer:
(1) a copy of any plats, declarations, covenants, conditions and
restrictions burdening the Property
(2) if a title insurance commitment is required to be furnished, and if
this box is checked ■Copies of any Other Documents (or, if
illegible, summaries of such documents) listed in the schedule of
exceptions (Exceptions). Even if the box is not checked, Seller
shall have the obligation to furnish these documents pursuant to
this subsection if requested by Buyer. This requirement shall
pertain only to documents as shown of record in the offices of the
clerk and recorder. The title insurance commitment, together with
any copies or summaries of such documents famished pursuant to
this section, constitute the title documents (Title Documents).
C. Survey ❑Seller shall cause Buyer and the issuer of the Title
commitment, to receive a current X Improvement Survey Plat ❑
Improvement Location Certificate ❑ (, as Buyer determines; the
description checked is known as Survey). Any amount for Survey shall be
shared equally by Seller and Buyer.
B. TITLE AND SURVEY REVIEW.
a. Title Review. Buyer shall have the right to inspect the Title
Documents. Written notice by Buyer of unmerchantability of title, form or
content of Title Commitment or of any other unsatisfactory title condition
shown by the Title Documents shall be signed by or on behalf of Buyer
and given to Seller on or before July 1, 2009 or within five (5) calendar
days after receipt by Buyer of any change to the Title Documents or
endorsement to the Title Commitment together with a copy of the
document adding any new Exception to title. If Seller does not receive
Buyer's notice by the date specified above, Buyer accepts the condition of
title as disclosed by the Title Documents as satisfactory.
b. Matters not Shown by the Public Records. Seller shall deliver to
Buyer, within ten (10) days of full execution of this Contract, true copies
of all leases and surveys in Seller's possession pertaining to the Property
and shall disclose to Buyer all easements, liens (including, without
Contract for Sale of Conservation Easement and River Access Area. Page 4
Cold Mountain Contract 6/23/2009 draft
limitation, governmental improvements approved, but not yet installed) or
other title matters (including, without limitation, rights of first refusal, and
options) not shown by the public records of which Seller has actual
knowledge. Buyer shall have the right to inspect the Property to determine
if any third party has any right in the Property not shown by the public
records (such as an unrecorded easement, unrecorded lease, or boundary
line discrepancy). Written notice of any unsatisfactory condition disclosed
by Seller or revealed by such inspection shall be signed by or on behalf of
Buyer and given to Seller on or before July 15, 2009. If Seller does not
receive Buyer's notice by said date, Buyer accepts title subject to such
rights, if any, of third parties of which Buyer has actual knowledge.
C. Survey Review. Buyer shall have the right to inspect Survey. If
written notice by or on behalf of Buyer of any unsatisfactory condition
shown by Survey, notwithstanding subparagraph b of this is received by
Seller on or before July 1, 2009, then such objection shall be deemed an
unsatisfactory title condition. If Seller does not receive Buyer's notice by
July 1, 2009, Buyer accepts Survey as satisfactory.
d. Sbecial Taxine Districts. SPECIAL TAXING DISTRICTS
MAY BE SUBJECT TO GENERAL OBLIGATION
INDEBTEDNESS THAT IS PAID BY REVENUES PRODUCED
FROM ANNUAL TAX LEVIES ON THE TAXABLE PROPERTY
WITHIN SUCH DISTRICTS. PROPERTY OWNERS IN SUCH
DISTRICTS MAY BE PLACED AT RISK FOR INCREASED MILL
LEVIES AND EXCESSIVE TAX BURDENS TO SUPPORT THE
SERVICING OF SUCH DEBT WHERE CIRCUMSTANCES ARISE
RESULTING IN THE INABILITY OF SUCH A DISTRICT TO
DISCHARGE SUCH INDEBTEDNESS WITHOUT SUCH AN
INCREASE IN MILL LEVIES. BUYER SHOULD INVESTIGATE
THE DEBT FINANCING REQUIREMENTS OF THE
AUTHORIZED GENERAL OBLIGATION INDEBTEDNESS OF
SUCH DISTRICTS, EXISTING MILL LEVIES OF SUCH
DISTRICT SERVICING SUCH INDEBTEDNESS, AND THE
POTENTIAL FOR AN INCREASE IN SUCH MILL LEVIES.
In the event the Property is located within a special taxing district and
Buyer desires to terminate this contract as a result, if written notice is
received by Seller on or before July 1, 2009, this contract shall then
terminate. If Seller does not receive Buyer's notice by such date, Buyer
accepts the effect of the Property's inclusion in such special taxing district
and waives the right to terminate.
e. Right to Obiect, Cure. If Seller receives notice of
unmerchantability of title or any other unsatisfactory title condition or
commitment terms as provided in subsections a, b, c and d above, Seller
may use reasonable efforts to correct said items and bear any nominal
Contract for Sale of Conservation Easement and River Access Area. Page 5
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Cold Mountain Contract 6/23/2009 draft
expense to correct the same prior to Closing. If such unsatisfactory title
condition is not corrected to Buyer's satisfaction on or before Closing, this
contract shall then terminate; provided, however, Buyer may; by written
notice received by Seller on or before Closing, waive objection to such
items.
f. Title Advisory. The Title Documents affect the title, ownership
and use of the Property and should be reviewed carefully. Additionally,
other matters not reflected in the Title Documents may affect the title,
ownership and use of the Property, including without limitation boundary
lines and encroachments, area, zoning, unrecorded easements and claims
of easements, leases and other unrecorded agreements, and various laws
and governmental regulations concerning land use, development and
environmental matters. The surface estate may be owned separately
from the underlying mineral estate, and transfer of the surface estate
does not necessarily include transfer of the mineral rights. Third
parties may hold interests in oil, gas, other minerals, geothermal
energy or water on or under the Property, which interests may give
them rights to enter and use the Property. Such matters may be
excluded from the title insurance policy
C. PROPERTY DISCLOSURE, INSPECTION AND INSURABILITY;
BUYER DISCLOSURE. Seller agrees to provide Buyer with a Seller's Property
Disclosure (Vacant Land) form completed by Seller to the best of Seller's current
actual knowledge.
a. Inspection Obiection Deadline Buyer shall have the right to have
inspections of the physical condition of the Property and Inclusions, at
Buyer's expense. If the physical condition of the Property or Inclusions is
unsatisfactory in Buyer's subjective discretion. Buyer shall, on or before
July 1, 2009
(1) notify Seller in writing that this contract is terminated, or
(2) provide Seller with a written description of any unsatisfactory
physical condition which Buyer requires Seller to correct (Notice to
Correct).
If written notice is not received by Seller on or before July 1, 2009, the
physical condition of the Property and Inclusions shall be deemed to be
satisfactory to Buyer.
b. Resolution Deadline. If a Notice to Correct is received by Seller
and if Buyer and Seller have not agreed in writing to a settlement thereof
within twenty (20) days of such Notice to Correct, this contract shall
terminate one calendar day following the resolution deadline set forth
Contract for Sale of Conservation Easement and River Access Area. Page 6
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Cold Mountain Contract 6/23/2009 draft
above, unless before such termination Seller receives Buyer's written
withdrawal of the Notice to Correct.
C. Insurabilitv. This contract is conditioned upon Buyer's
satisfaction, in Buyer's subjective discretion, with the availability, terms,
conditions and premium for property insurance. This contract shall
terminate upon Seller's receipt, on or before July 15, 2009 of Buyer's
written notice that such insurance was not satisfactory to Buyer. If said
notice is not timely received, Buyer shall have waived any right to
terminate under this provision.
d. Damaize. Liens and Indemnity. Buyer is responsible for payment
for all inspections, surveys, and engineering reports or for any other work
performed at Buyer's request and shall pay for any damage which occurs to
the Property and Inclusions as a result of such activities. Buyer shall not
permit claims or liens of any kind against the Property for inspections,
surveys, engineering reports and for any other work performed on the
Property at Buyer's request. Buyer agrees to indemnify, protect and hold
Seller harmless from and against any liability, damage, cost or expense
incurred by Seller in connection with any such inspection, claim, or lien.
This indemnity includes Seller's right to recover all costs and expenses
incurred by Seller to enforce this subsection, including Seller's reasonable
attorney and legal fees. The provisions of this subsection shall survive the
termination of this contract.
7. ' CLOSING. At Closing, Seller shall execute and deliver to Buyer or its assigns
the Conservation Easement Deed, and River Access Area Deed conveying these
interests free and clear of all liens, encumbrances and other exceptions, except
such easements, restrictions and other exceptions as are of record and are
approved by Buyer during the Inspection Period. Closing shall be on or before
July 30, 2009, unless this date is changed by mutual agreement. At the Buyer's
election, the River Access Area shall also be encumbered at Closing with a
Conservation Easement held by AVLT and/or the Roaring Fork Conservancy, or
other entity qualified to hold a conservation easement under applicable
regulations.
8. CONDITION OF THE PROPERTY, REPRESENTATIONS. As of the date
of this Agreement and the date of Closing, Seller warrants and represents the
following:
A. Seller is the record owner of the Land.
B. There are no actions, suits, proceedings or investigations pending or, to
Seller's knowledge threatened, against or affecting the Property, or arising
out of Seller's conduct on the Property.
Contract for Sale of Conservation Easement and River Access Area. Page 7
Cold Mountain Contract 6/23/2009 draft
C. To Seller's actual knowledge, Seller is in substantial compliance with the
laws, orders, and regulations of each governmental department,
commission, board, or agency having jurisdiction over the Property in
those cases where noncompliance would have a material adverse effect on
the Property.
D. Other than this Agreement or as otherwise disclosed in writing to Buyer at
or before the termination of the Inspection Period, (a) Seller is neither
party to nor subject to or bound by any agreement, contract or lease of any
kind relating to the Property, (b) no person has a right to possession of the
Property or holds an option or right of first refusal or a right of
access(Thomas Road) across the Property other than as disclosed in the
exceptions noted on Schedule B -2 of the Title Commitment.
E. The Property, to the best of Seller's actual knowledge, is not in violation
of any federal, state or local law, ordinance or regulation relating to
environmental conditions on, under or about the Property, including, but
not limited to, soil and groundwater conditions. Neither Seller, nor to the
best of Seller's actual knowledge any third party, has used, generated,
manufactured, refined, produced, processed, stored or disposed of on, or
under the Property or transported to or from the Property any Hazardous
Materials nor does Seller intend to use the Property prior to closing date
for the purpose of generating manufacturing, refining, producing, storing,
handling, transferring, processing or transporting Hazardous Materials.
For the purposes hereof, "Hazardous Materials" does not mean any typical
agricultural chemicals such as herbicides and pesticides utilized on
properties of this type in Pitkin County, provided that all such chemicals
are used in accordance with applicable laws and manufacturer's
specifications; but shall mean any flammable explosives, radioactive
materials, asbestos, , organic compounds known as polychlorinated
biphenyls, chemicals known to cause cancer or reproductive toxicity,
pollutants, contaminants, hazardous wastes, toxic substances or related
materials, including, without limitation, any substances defined as or
included in the definition of "hazardous substances ", "hazardous material"
or "toxic substances" in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sec.
9601, et seq. the Hazardous Materials Transportation Act, 49 U.S.C. Sec.
1801, et seq. the Resource Conservation and Recovery Act, 42 U.S.C.
Sec. 6901 et seq. or any other federal, state or local statute, law,
ordinance, code, rule, regulation, order, decree or other requirement of
governmental authority regulating, relating to or imposing liability or
standard of conduct concerning any hazardous, toxic or dangerous
substance or material, as now or at any time hereafter in effect, and in the
regulations adopted, published and /or promulgated pursuant to said laws.
There is an underground 500 gallon tank that was built in 1984. To the
best of Seller's knowledge, it has never leaked.To the best of Seller's
Contract for Sale of Conservation Easement and River Access Area. Page 8
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Cold Mountain Contract 6/23/2009 draft
actual knowledge and except as disclosed herein and in the Environmental
Report, there are no other underground storage tanks situated in the
Property.
F. No representation, warranty, or statement made herein by Seller contains
any untrue statement of any material fact or omits to state any material fact
necessary in order to make such representation, warranty, or statement not
misleading.
G. Walk- Through and Verification of Condition. Buyer, upon reasonable
notice, shall have the right to walk through the Property prior to Closing to
verify that the physical condition of the Property and Inclusions complies
with this contract.
H. Seller is duly authorized and has taken all necessary actions to execute and
perform this Agreement and this Agreement is enforceable against Seller
in accordance with its terms.
9. CONDITION OF PROPERTY, LIABILITY. Seller has made certain
representations and warranties concerning the Property and its condition. During
the Inspection Period the Buyer has the right to inspect the condition of the
Property. However, without regard to any inspections made by the Buyer, nothing
in this Agreement shall relieve either party of liability for misrepresentation,
breach of warranty or failure to reasonably inspect the condition of the Property.
10. TAXES. Seller shall pay all general taxes and assessments and all sale, excise,
transfer and deferred and recapture taxes of any type, for the Property for the
current year and all years prior to Closing. Seller shall remain responsible for
payment of taxes for the property encumbered by the Conservation Easement.
11. PRESERVATION OF PROPERTY; RISK OF LOSS. Except as otherwise set
forth herein, Seller agrees that the Property shall remain as it now is until Closing,
and that Seller agrees that it shall neither use nor consent to any use of the
Property for any purpose or in any manner which would adversely affect Buyer's
intended acquisition of the Property as a conservation area or similar use. This
covenant expressly precludes any mining of any type on the Property. In the event
that Seller shall use or consent to such use of the Property, Buyer may, without
liability, refuse to accept the conveyance of the Property, in which event the
earnest money plus all accrued interest shall be refunded.
12. COSTS AND FEES. Closing fees shall be paid by the Buyer. The premium for
the title insurance policy described above shall be paid by Buyer.
13. LIQUIDATED DAMAGES; DEFAULT.
Contract for Sale of Conservation Easement and River Access Area. Page 9
Cold Mountain Contract 6/23/2009 draft
A. SELLER'S REMEDIES. In the event that (a) all of the conditions to this
Agreement for the benefit of Buyer shall have been satisfied, or waived by
Buyer, (b) Seller shall have fully performed or tendered performance of its
obligations under this Agreement, and (c) Buyer shall be unable or shall
fail to perform its obligations under this Agreement, then the entire
amount of the earnest money plus all accrued interest thereon shall be
retained by Seller as liquidated damages under this Agreement, and Buyer
shall have no further liability to Seller. Buyer and Seller hereby
acknowledge and agree that Seller's damages would be difficult or
impossible to determine and that the amount of earnest money is the
parties' best and most accurate estimate of the damages Seller would
suffer in the event the transaction provided for in this Agreement fails to
close, and is reasonable under the circumstances existing as of the date of
this Agreement. Seller expressly waives the remedies of specific
performance and additional damages. Buyer and Seller agree that Seller's
right to retain the earnest money shall be the sole remedy of Seller in the
event of a breach of this Agreement by Buyer.
B. BUYER'S REMEDIES. If Seller shall fail to consummate the
transaction contemplated hereunder for any reason, or if such transaction
shall fail to close for any reason other than default by Buyer, Buyer may
elect, at Buyer's sole option: (i) To terminate this Agreement and be
released from its obligations hereunder, in which event the earnest money
shall be returned to Buyer; or (ii) To proceed against Seller for specific
performance of this Agreement. In the event the transaction contemplated
by this Agreement fails to close as a result of Seller's default in the
performance of its obligations established in this Agreement, the above
remedies shall be the sole remedies of Buyer.
C. COSTS AND EXPENSES. In the event of any arbitration or litigation
relating to this contract, the arbitrator or court shall award to the prevailing
party all reasonable costs and expenses, including attorney and legal fees.
14. NOTICES. All notices required or permitted hereunder will be deemed to have
been delivered only upon actual delivery thereof. All notices required or permitted
hereunder shall be given by hand delivery, or sent by telecopier, or sent by Federal
Express or other courier for delivery at the soonest possible time offered by such
courier, directed as follows:
If to Seller:
Cold Mountain Ranches, LLLP
4239 Highway 133
Carbondale, Co 81623
Contract for Sale of Conservation Easement and River Access Area. Page 10
3)-
Cold Mountain Contract 6123/2009 draft
Phone 970 - 963 -2019
Fax 970 - 963 -2019
Email: wmfalesOaol.com
with a copy to:
Dan Kerst, esq.
823 Blake Avenue, suite 202
Glenwood Springs, Colorado 81601
Phone 970 - 945 -2447
Fax 970 - 945 -2440
Email dan @dankerstpc.com
If to Buyer:
Pitkin County Board of County Commissioners
Ann. Dale Will, Director,
Pitkin County Open Space and Trails
530 E. Main St.
Aspen, CO 81611
Phone 970 - 920 -5203
Fax: 970 920 -5198
Email: dalew @co.pitkin.co.us
with a copy to:
John Ely, Pitkin County Attorney
530 E. Main St.
Aspen, CO 81611
Phone 970 -920 -5190
Fax: 970 920 -5198
Email: iohneaco.vitkin.co.us
15. MISCELLANEOUS.
A. BROKER'S COMMISSION. Seller and Buyer each represents to the
other that they have not contracted with any broker or finder with regard to
this transaction.
B. CERTIFICATE. Seller hereby declares and represents to Buyer that it is
not a "foreign person" for purposes of withholding of federal tax as
described in such Certificate. At or prior to Closing, Seller shall furnish to
Buyer a duly executed Certificate of Non - Foreign Status.
Contract for Sale of Conservation Easement and River Access Area. Page I 1
3-3
Cold Mountain Contract 6/23/2009 draft
C. ASSIGNS. Buyer may assign this Agreement and its rights as Buyer
hereunder, in whole or in part to other assignees consistent with the
conservation purposed of this Agreement provided that such other
assignments are approved by the Seller.
D. BINDING EFFECT. The terms and conditions of this Agreement shall
be binding upon and shall inure to the benefit of the parties' heirs,
executors, administrators, successors and assigns.
E. EXHIBITS. The exhibits hereto constitute an integral part of this
Agreement and are hereby incorporated herein.
F. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement
may be executed in counterparts, all of which shall constitute one
agreement which shall be binding on all of the parties, notwithstanding
that all of the parties are not signatories to the original or the same
counterpart. Signatures may be evidenced by facsimile transmission and at
the request of any party documents with original signatures shall be
provided to the other party.
G. SEVERABILITY. Provided each party receives the substantial benefit of
the bargain memorialized in this Agreement, if any provision of this
Agreement shall be held invalid, the other provisions hereof shall not be
affected thereby and shall remain in full force and effect.
H. ENTIRE AGREEMENT. This Agreement represents the entire
agreement of the parties and may not be amended except by a writing
signed by each parry thereto.
AUTHORITY. Each party to this Agreement warrants to the other that
the respective signatories have full right and authority to enter into and
consummate this Agreement and all related documents.
J. MERGER. The obligations, covenants, representations, warranties and
remedies set forth in this Agreement shall not merge with transfer of title
but shall remain in effect after the Date of Closing.
K. FURTHER ACTIONS. Each party shall execute and deliver or cause to
be executed and delivered any and all instruments reasonably required to
convey the Property to Buyer and to vest in each party all rights, interests
and benefits intended to be conferred by this Agreement.
L. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado.
M. OFFER. When signed and delivered to the Seller by Buyer, this
Agreement will constitute an offer to the Seller that can be accepted only
Contract for Sale of Conservation Easement and River Access Area. Page 12
3 Y
Cold Mountain Contract 6/23/2009 draft
by the Seller signing and delivering to Buyer an executed original of this
Agreement. Buyer may withdraw such offer in writing at any time prior to
its acceptance.
N. LABOR AND MATERIAL. Seller shall deliver to Buyer at Closing an
affidavit, on a form acceptable to Buyer, signed by Seller that no labor or
materials have been furnished to the Property within the statutory period
for the filing of mechanics' or materialmen's liens against the Property, or,
if labor or materials have been furnished during the statutory period, Seller
shall deliver to Buyer and Title Company, such material(s) as may be
required for the deletion of Schedule B standard title exceptions paragraph
#4 (any lien, or right to a lien, for services, labor or material heretofore or
hereafter furnished, imposed by law and not shown by the public records)
related to work done on the Property.
O. ATTORNEYS' FEES. In the event of any action for breach of, to enforce
the provisions of, or otherwise involving this Agreement, the court in such
action shall award a reasonable sum as attorneys' fees to the party who, in
light of the issues litigated and the court's decision on those issues, was the
substantially prevailing party in the action. If a party voluntarily dismisses
an action, a reasonable sum as attorneys' fees shall be awarded to the other
party.
P. SATURDAYS, SUNDAYS, HOLIDAYS. If the final date of any time
period of limitation set out in any provision of this agreement falls on a
Saturday, Sunday or a legal holiday under the laws of the State of
Colorado, then the time of such period shall be extended to the next day
which is not a Saturday, Sunday or legal holiday.
Q. INDEMNIFICATION. Buyer shall indemnify and hold Seller harmless
from and against any and all liens, claims, causes of action, damages,
liabilities and expenses (including reasonable attorneys' fees) arising out of
Buyer's inspections or tests perniitted under this Agreement, provided,
however, the indemnity shall not extend to protect Seller from any pre-
existing liabilities for matters merely discovered by Buyer (i.e., latent
environmental contamination) so long as Buyer's actions do not aggravate
any pre- existing liability of Seller. Buyer's obligations under this
Subsection Q shall survive the termination of this Agreement and shall
survive the Closing.
R. TIME OF ESSENCE, DEFAULT AND REMEDIES. Time is of the
essence hereof. If any note or check received as Earnest Money hereunder
or any other payment due hereunder is not paid, honored or tendered when
due, or if any other obligation hereunder is not performed or waived as
herein provided, remedies shall be limited to those described in Section 17
above.
Contract for Sale of Conservation Easement and River Access Area. Page 13
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Cold Mountain Contract 6/23/2009 draft
S. MEDIATION. If a dispute arises relating to this contract, prior to or after
closing, and is not resolved, the parties shall first proceed in good faith to
submit the matter to mediation. Mediation is a process in which the parties
meet with an impartial person who helps to resolve the dispute informally
and confidentially. Mediators cannot impose binding decisions. The
parties to the dispute must agree before any settlement is binding. The
parties will jointly appoint an acceptable mediator and will share equally
in the cost of such mediation. The mediation, unless otherwise agreed,
shall terminate in the event the entire dispute is not resolved within 30
calendar days of the date written notice requesting mediation is sent by one
party to the other at the party's last known address. This section shall not
alter any date in this contract, unless otherwise agreed.
T. EARNEST MONEY DISPUTE. In the event of any controversy
regarding the Earnest Money and things of value (notwithstanding any
termination of this contract or mutual written instructions), Earnest Money
Holder shall not be required to take any action. Earnest Money Holder may
await any proceeding, or at its option and sole discretion, interplead all
parties and deposit any money or things of value into a court of competent
jurisdiction and shall recover court costs and reasonable attorney and legal
fees.
U. TERMINATION. In the event this contract is terminated, all payments
and things of value received hereunder shall be returned and the parties
shall be relieved of all obligations hereunder, subject to §§ 10(C)(d), 19(S)
and 19(T).
16. BUYER'S CONTINGENCY; FORMAL COUNTY APPROVAL.
Notwithstanding the signature of the Pitkin County Open Space Director
recommending approval of this agreement, the obligations of the Buyer hereunder
are specifically contingent upon the valid adoption by of an Ordinance authorizing
the purchase of the Property and authorizing the Resolution Regarding Land Use
Approval, by the Board of County Commissioners of Pitkin County under terms
substantially the same as set forth in this Agreement.
17. BUYER'S CONTINGENCY REGARDING PARTICIPATION BY GREAT
OUTDOORS COLORADO; Seller acknowledges that the Buyer has been
awarded a grant by the Great Outdoors Colorado Trust Fund Board (LOCO) equal
to approximately one third of the Purchase Price. To obtain the grant proceeds,
Seller acknowledges that the Buyer must satisfy certain requirements such as
submission of a qualified appraisal, GOCO conservation easement approval, a
survey, an environmental assessment, title insurance commitment, a geologist's
remoteness letter, a stewardship monitoring and land management plan, and
placement of a sign visible from a public right of way which recognizes the role of
Contract for Sale of Conservation Easement and River Access Area. Page 14
?6
Cold Mountain Contract 6/23/2009 draft
GOCO in assisting to preserve the property, which expenses shall be borne by the
Buyer. The Seller agrees to cooperate in regard to the Buyer's fulfillment of these
potential grant requirements. Seller further agrees that the Buyer's obligation to
perform hereunder is conditioned on GOCO's agreement to disburse said grant
proceeds at Closing.
18. EFFECTIVE DATE. The Effective Date of this Agreement shall be the last date
signed by either party.
19. NOTICE OF ACCEPTANCE, COUNTERPARTS. This proposal shall
expire unless accepted in writing, by Buyer and Seller, as evidenced by their
signatures below, and the Seller receives a signed counterpart of this
Agreement on or before June 26, 2009. If Seller receives a signed
counterpart within said time period, this document shall become a contract
between Seller and Buyer.
20. NO BARGAIN SALE The Seller acknowledges that the Purchase Price
will be accepted as the full market value of the property, and hereby releases
the Buyer from any obligation or expectation to assist the Seller in seeking
to characterize the conveyance contemplated herein as a bargain sale or
charitable donation.
Contract for Sale of Conservation Easement and River Access Area. Page 15
3�
Cold Mountain Contract 6/23/2009 draft
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SELLER:
William E L Fales and Marjorie Perry
�/ �` ��`C Date: ig ,2 r f
By: � ;. ��-i 3/ c
General Partners, Cold Mountain Ranches, LLLP
BUYER:
PITKIN COUNTY BOARD OF COUNTY COMMISSIONERS
PATTI KA -�- CLAPPI~ k, Chair lette Jones, Dely County Clerk
Pitkin County Board of County Commissioners
Date: C' (, ?, C `1
STATE OF COLORADO
Date: —�3 -�
) ss.
COUNTY OF PITKIN
The foregoing instrument was acknowledged before me this )-3 day of
, - TVA ] t _ , 2009, by Patti Kay - Clapper as Chair of the Board of County
Commissioners of Pitkin County, Colorado.
WITNESS my hand and official seal.
My Commission expires: /,,7 p / 2 v77�
[SEAL]
' ! YNDEE R.
Notary Public DEAN
U Yf•�s`" yeee ��� �y
Contract for Sale of Conservation Easement and River Access Area. (= 4 - Page 16
g
Cold Mountain Contract 6/23/2009 draft
STATE OF COLORADO )
) ss.
COUNTY OF PITKIN ) X10
The foregoing instrument was acknowledged before me this ;3 day of
v V Al , 2009, by Jeanette Jones as Deputy County Clerk of Pitkin County,
Colorado.
WITNESS my hand and official seal.
My Commission expires: j 2 -- iJ I — 2
[SEAL]
r �
r
i./
RECOMMENDED FOR APPROVAL:
Dale Will, Director
Open Space and Trails Program
Notary Public
Contract for Sale of Conservation Easement and River Access Area.
LYNDEE R
DEAN
Page 17
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Master Plan Study C�
Cold Mountain Ranch
revised 8122108 by tEe Ltd Stediq Inc
Pitkin/ Garfield County, Colorado
EXHIBIT E
Description of River Access Area
A PARCEL OF LAND SITUATED IN THE SET /4 SE1 /4 OF SECTION 10 AND THE NEi /4 NE1 /4 OF SECTION 15, TOWNSHIP 8 SOUTH, RANGE 88 WEST OF
THE SIXTH PRINCIPAL MERIDIAN, COUNTY OF GARFIELD AND COUNTY OF PITKIN, STATE OF COLORADO, WITH ALL BEARINGS RELATIVE TO A BEARING
OF SOOT78'58'E BETWEEN THE WITNESS CORNER FOR THE NORTHEAST CORNER OF SECTION 15. A FOUND 3' 1969 COUNTY SURVEYOR BRASS CAP IN
PLACE AND THE SOUTHEAST CORNER OF SAID SECTION, A FOUND N0. 6 REBAR AND ALUMINUM CAP L.S. NO. 15710 IN PLACE, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT SAID WITNESS CORNER THENCE N69'31'46'W. A DISTANCE OF 1,217.63 FEET TO A POINT ON THE EASTERLY RIGHT -OF -WAY LINE OF
COLORADO DEPARTMENT OF 7RANSPORTA71ON STATE HIGHWAY NO. 133 AS DESCRIBED IN THE DEED RECORDED AS RECEPTION NO. 206999 OF THE
GARFIELD COUNTY CLERK AND RECORDER'S OFFICE, GARFIELD COUNTY, COLORADO, SAID POINT ALSO BEING ON THE EASTERLY RIGHT -OF -WAY LINE
OF COLORADO STATE DEPARTMENT OF HIGHWAYS FEDERAL AID PROJECT NO S0163(2), SAID POINT ALSO BEING THE POINT OF BEGINNING, THENCE
LEAVING SAID RIGHT -OF -WAYS S87'18'30'E, A DISTANCE OF 120.97 FEET TO A POINT ON THE CENTERLINE OF THE CRYSTAL RIVER; THENCE ALONG
SAID CENTERLINE THE FOLLOWING SIX (6) COURSES:
1). 500'12'41 "E, A DISTANCE OF 67.52 FEET,
2). \ S0834'46'W, A DISTANCE OF 104.70 FEET;
31 . S0034'2O'W. A DISTANCE OF 107.23 FEET.
4). SOT29'48 "E, A DISTANCE OF 148.85 FEET;
5). S0575'42'E. A DISTANCE OF 186.70 FEET;
6). S00'00'58'W, A DISTANCE OF 245.83 FEET• THENCE LEAVING SAID CENTERLINE S90'00'00'W, A DISTANCE OF 148.32 FEET TO A POINT ON SAID
RIGHT -OF -WAYS; THENCE ALONG SAID RIGHT -OF -WAYS NOI'32'28'E A DISTANCE OF 858.77 FEET To THE POINT OF BEGINNING.
CONTAINING 108.806 SQUARE FEET OR 2.498 ACRES, MORE OR LESS