HomeMy WebLinkAboutbocc.ord.009.2009RECEPTION#: x58151, 04121/2009 at
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1 CF 29, R $0.00 Doc Code ORDINANCE
Janice K. Vos Caudill, Pitkin Ccsunty, CO
~L /.~ f fG-CIn~G~
AN ORDINANCE, OF TI3E
BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO, APPROPRIATING ADDI'I~IONAL FUNDS
FUI~ THE SAWMILL HILL ACQUSI'I"TON
ORDINANCE #~, SERIES OF 2009
RECITALS
1. The Voters of Pitkin County and flee Pitlcin County Commissioners established an
Open Space and Trails Ftn1d for the purposes of preserving and providing open. space
and trails resources in Pitkizl County, and established an Open Space and Trails
Board of Trustees to guide the expenditure of those fi.ulds.
2. The Open Space and. Trails Program is charged with protecting public access to
waterways, scenic view planes, and habitat.
3, Sawmill Hill is a scenic property adjacent the historic Redstone Castle, in the upper
Crystal Valley, which possess important natural, scenic and recreational values.
4. Pitkin County Open space and trails pursued an agreement with the three owners of
the 7 parcels on Sa«~mill Hill agreed to acquire interests in their property in
exchange far 6 TDRs and $2,050,000 in open space Fiulds.
S. On November 19, 2009, tlae Board of County Commssioners approved Ordinance
031-2008 appropriating $2,OS0,000 in open space fiends, and Resolution 128-2008,
awarding 6 TDRs to the Sawmill Hill property owners.
6. The seller of Parcel 1 of Sawmill HiII and The Open Space and Trails Board
(OSTB) now desire to modify the purchase agreement to eliminafie 1 TDR and
increase the purchase price far Parcel 1 by $285,000.
7. The Open Space and Trails Board passed. a unanimous motion recamnzending the
appropriation of an additional $285,000 for Parcel 1 of Sawmill Hill the I3oazd of
Cotulty Commissioners vn February 10, 2009.
NOW THEREFORE $E IT ORDAINED by the Board of County
Conunissioners of Pitkin County, Colorado, that:
1. The Board approves an expenditure of an additional $285,000 for the
Property, and further authorizes the Open Space Department.
2. Upon approval of the :Conn by the t)pen Space Director and Couzity Attorney, the
Chair is authari~ed to execute a contract far purchase of the Parcel 1 of Sat~rmill
I-till, in exchange for tl~e elimination of 1 TDR.
3. That adjustments be made to the year 2009 budget as follows:
OPEN SPACE AND TRAILS FUND --~_-~I
Pre~~ious Re~~ised
BYU1get "I"his Cha~i~e Proj Budget
Sawmill Hill Property_Acquisitiaz?
Acquisition costs for the Sawmill Hill Property may
be reimbursed frazn a future issuance of
count3~ general obligation bands:
Bond proceeds (revenue)
Sawmill property expenditure
0 S 285,000 ~ 285,000
2,060,000 52$5,004 $2,345,000
The F3C3CC finds that adoption of this ordinance is necessary for the immediate
preserc~atian of the public health, safety and «~elfare of the citizens of Pitkin County and
therefore declares this ordinance and legislation to be effective immediately.
INTRODUCED, F'H2ST READ, AND APPROVED ON THE 25th llAY OF
FEBRUAI2Y, 2009.
NOTICE OF PUI~LIC HEARI G P BLISIFIED IN THE ASPEN TIMES
WEEKLY ON THE ~__ llAY OF ~~~~~ 2009.
APPROVED UPON SECOND READING AND PUBLIC HEARING ON
THE 11th DAY t)F MARCH 2009.
PUI3LISHED AFTER A~I OPTION IN THE WE KEND EDITION OF 'TINE
ASPEN TIMES ON THE ~ ~- DAY UF(c. v ~ , 2009.
ATTEST: I30AI2D OF COUNTY COMMISSIONERS
,~ OF PITKIN Ct)UNT'Y, COLORADO
,{
Je ette Janes Patti Kay-Clap . a' '
D caty Clcrle j~ Chair
Date: r -~ ~ l/- ~ `I
Al'I'ROVED AS Tt) FORM:
_ ~
John
un •ney
°~~
Hilary Fde • zer _____.
County alter
.»
~~ ; .~ .
Dafie Will, Director
Open Space and Trails Pragraan
DEED OF CONSERVATION EASEMENT IN GROSS
SAWMILL HILL PARCEL 1
THIS D ED OF CONSERVATION EASEMENT ("Easement Deed") is granted this
.' Ste'` day of ~ , 2009, by CVR Properties, LLC, 117 Redstone Blvd., Redstone, CO
81623 ("Grantor"), to and for the benefit of Board of County Commissioners of Pitkin County, a
body corporate and politic, 530 East Main St., Aspen, CO 81611 (the "Grantee")(collectively,
the "Parties").
The following exhibits are attached hereto:
Exhibit A Description of Property
Exhibit B Map of Property
Exhibit C Title Exceptions
RECITALS
WHEREAS, Grantor is the sole owner in fee simple of certain real property in Pitkin
County, State of Colorado, more particularly described in Exhibit A (the "Property"). The
Property comprises approximately 35.003 acres of land; and
WHEREAS, the Property possesses outstanding natural, scenic, open space, wildlife,
historic, and recreational values (collectively, "Conservation Values") of importance to the
Grantee, the people of Pitkin County, and the people of the State of Colorado that are worthy of
preservation; and
WHEREAS, the Property is adjacent the West Elk Historic and Scenic Byway and its
protection secures the view plane between the byway and the historic Redstone Castle; and
WHEREAS the Property lies between the historic Redstone Inn and historic Redstone
Castle and constitutes a scenic buffer between these which is important to the cultural heritage of
early settlement in the mountain west; and
WHEREAS, the specific Conservation Values of the Property will be documented in an
inventory of relevant features of the Property, ("Baseline Documentation Report") to be
completed by July 1, 2009, and may be supplemented with reports, maps, photographs, and other
documentation prepared at the time the easement herein was granted and that are on file with the
Grantee, that the Parties agree to in good faith verify that this Baseline Documentation Report
will accurately represent the Property at the time of this grant and that is intended to serve as an
objective information baseline for monitoring compliance with the terms of this grant.
WHEREAS, Grantor intends that the Conservation Values of the Property be preserved
and maintained by the continuation of land use patterns, including, without limitation, those
relating to fishery and wildlife habitat management, protection of historic resources, and public
access across the Property for ice climbers accessing the Redstone Pillar ice climb located on
Pitkin County owned lands east of the Property; and
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WHEREAS, Grantor intends, as owner of the Property, to convey to the Grantee the right
to preserve and protect the Conservation Values of the Property in perpetuity; and
WHEREAS, the Grantee agrees by accepting this grant to honor the intentions of Grantor
stated herein and to preserve and protect in perpetuity the Conservation Values of the Property
for the benefit of this generation and the generations to come; and
WHEREAS, the Grantee is a government organization described in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended (the "Code") and is apublicly-supported
organization as described in Section 170(b)(1)(A) of the Code whose purpose includes the
preservation and protection of the natural, scenic, unique high quality wetlands habitat and
riparian habitat of the Crystal Valley, including the area in which the Property is located, by
assisting landowners who wish to protect their land in perpetuity, and area "qualified
organization" eligible to receive conservation easements within the meaning of Section 170(h)(3)
of the Code; and
WHEREAS, the Grantee is also a charitable organization as required under C.R.S. § 38-
30.5-101 et seq., which provides fo'r conservation easements to maintain land in a natural, scenic
or open condition, for wildlife habitat, or for agricultural and other uses or conditions consistent
with the protection of open land in Colorado; and
WHEREAS the property encumbered by this conservation easement is traversed by a
private road known as Sawmill Hill Road Grantee is entitled to utilize the road for maintenance
purposes on its adjacent lands and also ice climbers are permitted access across the Property
between November 15 and April 15 for the purposes of accessing the Redstone Pillar.
NOW, THEREFORE, in consideration of the matters above, the mutual covenants,
terms, conditions and restrictions contained herein, and other good and valuable consideration;
the receipt and sufficiency of which is 13~reby acknowledged, the Parties agree as follows:
1. Grant. Grantor hereby voluntarily and irrevocably grants and conveys to the
Grantee a perpetual Conservation Easement in Gross (the "Easement"), pursuant to C.R.S. §38-
30.5-101 et seq., consisting of the rights and restrictions enumerated herein, over and across the
Property described in Exhibit A attached hereto, to have and to hold said Easement unto the
Grantee and their successors and assigns forever. The Easement shall constitute a binding
servitude upon the Property and shall be subject to prior reservations, easements, encumbrances
and exceptions of record, except as otherwise set forth herein.
2. Purposes. The purpose of this Easement is to preserve and protect the
Conservation Values of the Property in perpetuity. This purpose is in accordance with § 170(h)
of the Internal Revenue Code as amended, and the Treasury Regulations adopted pursuant
thereto. To achieve this Purpose, Grantor intends to convey this Deed of Conservation Easement
to the Grantee to ensure that the Conservation Values of the Property will be preserved and
protected forever. Subject to the purpose of this Easement, Grantor and the Grantee intend to
permit only uses of the Property that do not substantially diminish or impair the Property's
Conservation Values and to prevent any use of the Property that will substantially impair or
interfere with protecting the Property's Conservation Values. It is the intent of the Grantor to
McCormick-Sawmill Parcel 1 2
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i
preserve the Property in its natural, scenic, and open space condition to preserve the open space
character, wildlife habitat, and scenic qualities of the Property.. Notwithstanding the foregoing,
nothing in this Easement is intended to compel a specific use of the Property, such as agriculture,
other than the preservation and protection of the Property's Conservation Values.
3. Baseline Documentation. The parties acknowledge that a written report will be
prepared, reviewed, and approved by both parties (the "Baseline Documentation Report") by
July 1, 2009. A copy of the Baseline Documentation Report will be on file with both parties and'
by this reference made a part hereof. The parties acknowledge that the Baseline Documentation
Report is intended to establish the condition of the Property subject to the Easement as of the
date written above. The parties further agree that, in the event a controversy arises with respect
to the condition of the Property as of the conveyance date of the Easement, or compliance with
or violation of any term or provision of this Easement, the parties may use the Baseline
Documentation Report and any other relevant or material documents, surveys, reports, and other
information to assist in resolving a controversy.
4. Rights of Grantee. To accomplish the purposes of this Easement, Grantor
conveys the following rights to the Grantee:
4.1 The right to preserve and protect the Conservation Values of the Property in
perpetuity; and
4.2 The right to enter upon the Property at reasonable times, to inspect the Property
thoroughly, to monitor Grantor's compliance with and otherwise enforce the terms of this
Easement Deed; provided that such entry shall be upon thirty-six hour prior notice to Grantor, and
except that no such notice shall lie required in the event the Grantee reasonably believes that
immediate entry upon the Property is essential to prevent or mitigate a violation of this Easement
Deed. The Grantee shall not unreasonably interfere with Grantor's use and quiet enjoyment of
the Property; and
4.3 The right to prevent any activity on or use of the Property that is inconsistent with
the purposes of this Easement, or that may have an adverse impact on the Conservation Values of
the Property, and to require the restoration of such areas or features of the Property that are
damaged by any inconsistent activity or use; and
4.4 Any other rights that the Parties may approve consistent with the purposes of this
Easement and the Conservation Values, such as habitat enhancement projects, recreational
enhancements such as fishing trails, or scientific studies.
4.5 The Grantee shall have the right to utilize the Sawmill Hill Road for land
management activities on adjacent lands owned outright by Grantee.
4.6 Public access by ice climbers seeking to access the Redstone Pillar ice climb is
provided across the property during the period November 15 through April 15,. Other than
Grantor's and Grantor's invitees' dogs, this limited public access shall permit no dogs on Castle
Road.
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C~
4.7 The public access restrictions herein shall remain in perpetuity, unless amended
by subsequent agreement of Grantor and Grantee.
5. Prohibited Uses. Any activity on or use of the Property inconsistent with the
purposes of this Easement is prohibited. Without limiting the generality of the foregoing, the
following activities and uses are expressly prohibited:
5.1 The change, disturbance, alteration, or impairment of the relatively natural habitat
for plants, wildlife, or similar ecosystems within and upon the Property, except as provided
herein.
5.2 The construction, placement, reconstruction of any buildings, structures, mobile
homes, or billboards, except as otherwise expressly provided herein.
5.3 The conveyance of new easements, rights-of--ways, the paving or grading of new
roadways or the construction of any new roadways without the prior written consent of the
Grantee, which consent shall be in the Grantee's sole discretion.
5.4 The removal, destruction, or cutting of native vegetation, except as necessary for
fire or disease prevention or control of pine beetles, except the cutting of dead, down or
diseaesaed trees or the thinning of trees for forest health under the supervision of the Colorado
State Forest Service and consistent with other applicable laws.
5.5 The introduction of non-native plant or animal species.
5.6 The grazing of livestock except as part of a noxious weed control effort.
5.7 The use of pesticides or herbicides other than for the control of noxious weeds
and/or pests in a manner consistent with sound environmental conservation practices and the
control of bark beetles consistent with other applicable laws.
5.8 The exploration, mining, or extraction of minerals, oil, gas, or other
hydrocarbons, soils, sands, gravel, rock, or .other materials on or below the surface of the
Property. Grantor, its heirs, successors, transferees or assigns shall not transfer, lease or
otherwise separate the soil, sand, gravel, rock, oil, natural gas; fuel or any other mineral
substance from the Property.
5.9 Any division, subdivision, or de facto subdivision of the Property, provided
however that boundary changes with adjacent parcels are permitted with the Grantee's written
consent provided that the affected land remains subject to the restrictions contained herein, the
new landowner would agree in writing to abide by the terms of this Deed, and provided that such
boundary changes will not result in additional development on adjacent parcels.
5.10 The use of any motorized vehicles, with the exception of the use of motorized
vehicles incidental and necessary to the use of the Property for land management activities and
for uses and practices by Grantor consistent with this Easement Deed as described in Section 6,
below.
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Conservation Easement
5.11 The establishment or maintenance of any commercial feed lot, which shall be
defined for purposes of this Easement Deed as a permanently constructed, confined area or
facility within which the land is not grazed or cropped annually, for purposes of engaging in the
business of the reception and extended feeding and finishing of large numbers of livestock for
hire.
5.12 The accumulation, dumping or other disposal of trash,`ashes, garbage, or other
offensive or unsightly refuse on the Property.
5.13 The degradation, pollution, or drainage of any surface or sub-surface water.
5.14 Any use that would increase, or substantially add to the risk of soil erosion.
5.15 Any change in the topography of the Property through the placement therein of
soil, land fill, dredging spoils, or other material, except as incidental and necessary to the
maintenance, repair and replacement of existing roads, which uses shall require no notice to
Grantee except as may otherwise be required under applicable local, state or federal laws, rules
or regulations, and provided that disturbed areas will be revegetated consistent with prudent land
management practices to prevent erosion and the spread of noxious weeds.
5.16 The erection, construction, installation, relocation or use of a communication
facility, a telecommunication facility, a network element or any other telecommunication
facilities, equipment or material that may be used for telecommunications or to provide such
services; except such facilities existing as of the date of this Easement, or personal or low-impact
telecommunications services that do not substantially diminish or impair the Conservation
Values.
5.17 Industrial uses are prohibited on the Property.
5.18 Commercial signs, billboards, awnings, or advertisements shall not be displayed
or placed on the Property. No signs shall significantly diminish or impair the Conservation
Values of the Property.
6. Consistent Uses of the Property. The following uses and practices are
consistent with this Easement Deed. Certain of these consistent uses and practices as may be
expressly identified as being subject to specified conditions, to the notice provision as described
in Paragraph 10, and/or to the requirement of and procedures for prior approval by the Grantee as
described in Paragraph 9: .
6.1 Passive recreational uses by Grantor, its guests and invitees, including hiking,
hunting, and the like, as well as camping provided that no permanent facilities are allowed and
no more than 6 persons at one time.
6.2 Such other natural surface trails or paths ~s may be needed to provide recreational
access to the Redstone Pillar, subject to mutual consent and approval of Grantor and Grantee.
6.3 Land management activities that further the preservation, forest health and/or
restoration of the natural condition of the property.
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6.4 Research solely by Grantor's employees and/or subcontractors that focuses on the
natural characteristics or wildlife found on the property.
6.5 Commercial uses that are conducted in a manner that is consistent with § 170(h)
of the United States Internal Revenue Code and the Treasury Regulations adopted pursuant
thereto, are consistent with the purposes of the Easement, and do not substantially diminish or
impair the Property's Conservation Values. It is expressly acknowledged and agreed that those
uses identified in Section 6.1, above, are permitted commercial uses, provided however, that
nothing contained herein is intended to be a land use permit granted ,by Pitkin County and all
uses contained herein are subject to applicable laws and regulations.
6.6 Trees may be cut, and/or pesticides used, to control insects and disease, to control
invasive non-native species, and to prevent personal injury and property damage and to maintain
forest health. Down, dead or dying trees may be cut for firewood.
6.7 Fences for purposes of reasonable and customary management of wildlife, or for
separation of trails from adjacent private land, provided said fencing does not unduly restrict or
exclude wildlife use of the Property.
6.8 Grantor may continue to use, operate, maintain and repair and replace all existing
roads, utility lines, currently on the Property, and provided that stream bank stabilization to protect
the existing Castle Road is explicit permitted pursuant to this paragraph.
6.9 Castle Road, which is depicted as a 30' access easement on Exhibit B and lies
adjacent to the northwest boundary of this Easement, may be expanded onto the Property, and may
be repaired, replaced, improved and widened as need, only with mutual consent of both Grantor and
Grantee, and with the appropriate. land use approval from the Pitkin County Board of County
Commissioners.
7. Reserved Rights. Grantor reserves to itself and to its personal representatives,
heirs, successors, and assigns, all rights accruing from their ownership of the Property, including
the right to engage in all uses of the Property that are consistent with the purposes of this
Easement Deed and that do not have an adverse impact on the Conservation Values. Grantor
shall notify the Grantee in writing, as described in Paragraph 9, before exercising reserved rights
that might have an adverse impact on the Conservation Values.
8. Representations and Warranties. Grantor (only and not his assigns or
successors in interest) represents and warrants that, after reasonable investigation and to the best
of its knowledge:
8.1 No substance defined, listed, or otherwise classified pursuant to any federal, state,
or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise
contaminating to the air, water, or soil, or in any way harmful or threatening to human health or
the environment exists or has been released, generated, treated, stored, used, disposed of,
deposited, abandoned, or transported in, on, from, or across the Property.
8.2 There are not now any underground storage tanks located on the Property,
whether presently in service or closed, abandoned, or decommissioned, and no underground
McCormick-Sawmill Pazcel 1
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storage tanks have been removed from the Property in a manner not in compliance with
applicable federal, state, and local laws, regulations, and requirements.
8.3 There is no pending litigation in any way affecting, involving, or relating to the
Property.
8.4 No civil or criminal proceedings or investigations have been instigated at any time
or are now pending, and no notices, claims, demands, or orders have been received, arising out
of any violation or alleged violation of, or failure to comply with, any federal, state, or local law,
regulation, or requirement applicable to the Property or its use, nor do there exist any facts or
circumstances that Grantor might reasonably expect to form the basis for any such proceedings,
investigations, notices, claims, demands, or orders.
8.5 Grantor (only and not his successor or assigns) warrants that Grantor has good
and sufficient title to the Property, subject to the exceptions described on the attached Exhibit C,
that Grantor has good right, full power and lawful authority to grant and convey this Easement,
and hereby promises to defend the same against all claims from persons claiming by, through, or
under Grantor. Grantor further warrants that there are no mortgages or liens on the Property.
9. Notice of Intention to Undertake Certain Permitted Actions. The purpose of
requiring Grantor to notify the Grantee before undertaking certain permitted activities is to afford
the Grantee an opportunity to ensure that the activities in question are designed and carried out in
a manner consistent with the purposes of this Easement Deed. Whenever notice is expressly
required for a permitted use herein, Grantor shall notify the Grantee in writing not less than 45
days prior to the date Grantor intends to undertake the activity in question, unless a different time
period for the giving of notice is provided as to the activity in question. The notice shall describe
the nature, scope, design, location, timetable, and any other material aspect of the proposed
activity in sufficient detail to permit the Grantee to make an informed judgment as to its
consistency with the purposes of this Easement and the Conservation Values.
10. The Grantee's Approval. Whenever this Easement Deed requires that Grantor
obtain the Grantees' approval of any activity on or use of the Property, such approval shall not be
unreasonably withheld or delayed. Where the Grantee's approval is required, the Grantee shall
grant or withhold their approval in writing within 30 days of receipt of Grantor's written request
therefor. The Grantee's approval may be withheld if the Grantee determines that the action as
proposed would be inconsistent with the Conservation Values or the purposes or terms of this
Easement„Deed; the reason(s) for such a determination shall be set forth with specificity by the
Grantee in a written notice to Grantor. Where a modification of the proposed use or activity by
Grantor would render the same consistent with the purposes of this Easement Deed and the
Conservation Values, the Grantee shall specify, in such written notice to Grantor, such required
modifications. If the Grantor disagrees with the Grantee's decision, the parties shall attempt to
resolve the dispute in mediation, pursuant to Subparagraph 11.1 below.
11. Grantee's Remedies: Enforcement. The Grantee shall have the right to prevent
and correct or require correction of violations of the terms and purposes of this Easement Deed.
The Grantee may enter the Property for the purpose of inspecting for violations in accordance
with Subparagraph 4.2 above. If the Grantee finds what it believes is a violation, or a threat of ~
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violation, the Grantee shall notify Grantor in writing of the nature of the alleged violation. Upon
receipt of this written notice, Grantor shall either: (1) restore the Property as best possible to its
condition prior to the violation in accordance with a plan approved by the Grantee; or (2) provide
a written explanation to Grantee of the reason why the alleged violation should be permitted. If
the Grantee is not satisfied with Grantor's written explanation, all Parties.agree to meet as soon as'
possible to resolve this difference. If a resolution of this difference cannot be achieved at the
meeting, all Parties agree to meet with a mutually acceptable mediator to attempt to resolve the
dispute pursuant to Subparagraph 13.1 below.
Should mediation fail to resolve the dispute within sixty (60) days of Grantee written
notice to Grantor of the alleged violation, or by such other date as the Parties may mutually
agree, the Parties may take appropriate legal action pursuant to the Paragraphs below, including
seeking injunctive relief by ex pane means if necessary, to stop an alleged violation. The
exclusive venue for any such suit is in the County in which the Property is located. The failure
of Grantee to discover a violation or to take action shall not waive any of the Grantee's rights,
claims or interests in pursuing any such action at a later date. Nothing in this conservation
easement serves to waive any immunity at law, including immunity granted under the Colorado
Governmental Immunities Act, Section 24-10-101 et seq., C.R.S., or any other rights,
protections, immunities, defenses or limitations on liability provided by law, and subject to any
applicable provisions of the Colorado Constitution and applicable laws.
11.1 Mediation. If a dispute arises between the Parties concerning the consistency of any
proposed use or activity with the purpose of this Easement Deed, and Grantor agrees not to
proceed with the use or activity pending resolution of the dispute, either party may refer the.
dispute to mediation by request made in writing upon the other. Within ten (10) days of the
receipt of such request, the Parties shall select a single trained and impartial mediator with
experience in Conservation Easement Deeds and other land preservation tools. If the Parties are
unable to agree on the selection of a single mediator, then the Parties shall each select a trained
and impartial mediator with experience in Conservation Easement Deeds and other land
preservation tools, and those two mediators shall select a similarly skilled mediator who shall
alone mediate the dispute. Mediation shall then proceed in accordance with the following
guidelines:
A. Per ose. The purpose of the mediation is to: (1) promote discussion
between the Parties; (2) assist the Parties to develop and exchange
pertinent information concerning the issues in dispute; and (3) assist the
Parties to develop proposals that will enable them to arrive at a mutually
acceptable resolution of the controversy. The mediation is not intended to
result in any express or de facto modification or amendment of the terms,
conditions, or restrictions of this Easement Deed.
B. ParticiRation. The mediator may meet with the Parties and their counsel
jointly or ex pane. The Parties agree that they will participate in the
mediation process in good faith and expeditiously, attending all sessions
scheduled by the mediator, except in cases when the Grantee believes that
Conservation Values are continuing to be harmed during the mediation
process in which case the Grantee can suspend its involvement in the
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mediation to remedy this threat of ongoing violation. Representatives of
the Parties with settlement authority will attend mediation sessions as
required by the mediator.
C. Confidentiality. All information presented to the mediator shall be
deemed confidential and shall be disclosed by the mediator only with the
consent of the Parties or their respective counsel. The mediator shall not
be subject to subpoena by any .party in any subsequent litigation. No
statements made or documents prepared for mediation sessions shall be
disclosed in any subsequent proceedings or construed as an admission of a
p~Y•
D. Time Period. Neither party shall be obligated to continue the mediation.
process beyond a period of sixty (60) days from the date of receipt of the
initial request or if the mediator concludes that there is no reasonable
likelihood that continuing mediation will result in a mutually agreeable
resolution of the dispute. The Parties shall each bear 50% of the
mediator's fees.
11.2 Injunctive Relief. The Grantee may bring an action at law or in equity, ex parte
as necessary, in a court of competent jurisdiction, to enforce the terms of this Easement Deed and
to enjoin by temporary or permanent injunction a violation, including to require or cause the
restoration of the Property to the condition that existed prior to the violation. The exclusive
venue for such an action is the county in which the Property is located.
11.3 Damas?es. The Grantee shall be entitled to recover damages for violation of the
terms of this Easement Deed or injury to the Conservation Values, including, without limitation,
damages for the loss of scenic, aesthetic, or environmental values. The Grantee shall apply any
damages recovered to the cost of undertaking any restorative, remediative, corrective action on
the Property. Nothing in this conservation easement serves to waive any immunity at law,
including immunity granted under the Colorado Governmental Immunities Act, Section 24-10=
101 et seq., C.R.S., or any other rights, protections, immunities, defenses or limitations on
liability provided by law, and subject to any applicable provisions of the Colorado Constitution
and applicable laws.
11.4 Emergency Enforcement. If the Grantee reasonably believes an ongoing or
threatened imminent activity violates the Easement Deed, the Grantee may, in their sole
discretion, take immediate legal action as set forth in this Paragraph without prior notice to
Grantor, without waiting for the period provided for cure to expire, and without waiting for the
60 day mediation period to expire. The exclusive venue for any such suit is in the County in
which the Property is located.
11.5 Scope of Relief. The Grantee's rights under this Paragraph apply equally in the
event of either actual or threatened violations of the terms of this Easement Deed. Grantor agrees
that the Grantee's remedies at law for any violation of the terms of this Easement Deed are
inadequate and that the Grantee shall be entitled to the injunctive relief described in
Subparagraph 11.2, both prohibitive and mandatory, in addition to such other relief to which the
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Grantee may be entitled, including specific performance of the terms of this Easement Deed,
without the necessity of proving either actual damages or the inadequacy of otherwise available
legal remedies. The Grantee's remedies described iri this Paragraph shall be cumulative and shall
be in addition to all remedies now or hereafter existing at law or in equity. Nothing in this
conservation easement serves to waive any immunity at law, including immunity granted under
the Colorado Governmental Immunities Act. Section 24-10-101 et seq., C.R.S., or any other
rights, protections, immunities, defenses or limitations on liability provided by law, and subject
to any applicable provisions of the Colorado Constitution and applicable laws.
11.6 Costs of Enforcement. All parties shall bear their own costs and attorneys' fees
in any enforcement action.
11.7 The Grantee's Discretion. Enforcement of the terms of this Easement Deed shall
be at the sole discretion of the Grantee, and any forbearance by the Grantee to exercise their
rights under this Easement Deed in the event of any breach of any term of this Easement Deed by
Grantor shall not be deemed or construed to be a waiver by the Grantee of such term or any
subsequent breach of the same or any other term of this Easement Deed or of any of the
Grantee's rights under this Easement Deed. No delay or omission by the Grantee in the exercise
of any right or remedy upon any breach by Grantor shall impair such right or remedy or be
construed as a waiver.
11.8 Waiver of Certain Defenses. No action shall be commenced or maintained to
enforce the terms of any building restriction described in this Easement Deed, or to compel the
removal of any building or improvement, unless said action is commenced within four (4) years
from the date of the violation for which the action is sought to be brought or maintained. To the
extent that any defense available to Grantor pursuant to C.R.S. §38-41-119 is inconsistent with
the foregoing, Grantor waives that defense.
11.9 Acts Beyond Grantor's Control. Nothing contained in this Easement Deed shall
be construed to entitle the 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. Grantor is not responsible for acts of third parties that Grantor could not reasonably have
anticipated or prevented and who are out of Grantor's control.
12. Costs, Liabilities, Taxes and Environmental Compliance.
12.1 Hold Harmless. The Grantor agrees to use its best faith efforts to hold the
Grantee harmless from liability arising from or in any way connected with: (1) injury to or the
death of any person, or physical damage to any property, resulting from any act, omission,
condition, or other matter related to or occurring'on or about the Property, regardless of cause,
unless due solely or in part to the negligence of the Grantee or any of its agents; (2) the presence
or release of hazardous or toxic substances on, under or about the Property, unless due solely or
in part to the negligence of the Grantee or any of its agents, subject to the current constraints or
limitations of Colo. Const. Art. XI, Section 1, as amended from time to time, which constraints
or limitations the County believes currently prohibit it from adopting a strict obligation to hold
McCormick-Sawmill Parcel 1 1 ~
Conservation Easement
/3
harmless the Grantee. Nothing contained herein waives or is intended to waive any protections
that may be applicable to the Grantor under the Governmental Immunity Act, Section 24-IO-101
et seq., C.R.S., or any other rights, protections, immunities, defenses or limitations on liability
provided by law, and subject to any applicable provisions of the Colorado Constitution and
applicable laws.
Without limiting the foregoing, nothing in this Deed shall be construed as giving rise to
any right or ability in the Grantee, nor shall the Grantee have any right or ability, to exercise
physical or managerial control over the day-to-day operations of the Property, or otherwise to
become an operator with respect to the Property within the meaning of The Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended. '
12.2 Costs, Le ag_ 1 Requirements and Liabilities. Grantor will retain all responsibilities
and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep,
and maintenance of the Property, including weed control and eradication and the maintenance of
adequate liability insurance coverage, which names the Grantee as an additional insured.
Grantor remains solely responsible for obtaining any applicable governmental permits and
approvals for any construction or other activity or use permitted by this Easement, and all such
construction or other activity or use shall be undertaken in accordance with all applicable federal,
state, and local laws, regulations and requirements. Grantor shall keep the Property free of any
liens arising out of any work performed for, materials furnished to, or obligations incurred by
Grantor.
12.3 Taxes. Grantor shall pay before delinquency all taxes, assessments, fees, and
charges of whatever description levied on or assessed against the Property by competent
authority (collectively "Taxes"), including any Taxes imposed upon, or incurred as a result of,
this Easement, and shall furnish the Grantee with satisfactory evidence of payment upon request.
The Grantee is authorized, but in no event obligated, to make or advance any payment of Taxes,
upon ten (10) days prior written notice to Grantor, in accordance with any bill, statement, or
estimate procured from the appropriate authority, without 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 to the Grantee at the lesser of fifteen percent (15%) per
annum, or the maximum rate allowed by law.
12.4 Remediation. If, at any time, there occurs, or has occurred, a release in, on, or
about the Property of any substance now or hereafter defined, listed, or otherwise classified
pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic,
polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or
threatening to human health or the environment ("Release'), Grantor agrees to take all steps
necessary to assure its containment and remediation, including any cleanup that may be required,
unless the release was caused by the Grantee, in which case the Grantee shall be responsible
therefor.
12.5 Control. Nothing in this Grant shall be construed as giving rise, in the absence of
a judicial decree, to any right or ability in the Grantee to exercise physical or managerial control
over the day-to-day operations of the Property, or any of Grantor's activities on the Property, or
otherwise to become an operator with respect to the Property within the meaning of The
McCormick-Sawmill Parcel 1 11
Conservation Easement
Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended
("CERCLA"), and any Colorado state law counterpart.
13. Real Property Interest. This Easement constitutes a real property interest
immediately vested in the Grantee. The parties stipulate that this Easement has a fair market
value equal a proportion of the property value determined by dividing the value of the Property
encumbered by the Conservation Easement by the value of the Property unencumbered by the
Conservation Easement, based on the June 2, 2008 appraisal by Appraisal Associates of Colorado
For the purposes of this Easement, the ratio of the value of the Easement to the value of the
Property as unencumbered by the Easement shall be 69% and shall remain constant.
14. Extinguishment and Condemnation.
14.1 Extinguishment. In granting this Easement, Grantor has considered the possibility
that uses prohibited by the terms of this Easement Deed may become more economically
valuable than permitted uses and that neighboring properties may be used entirely for such
prohibited uses in the future. It is the intent of the Grantor and the Grantee that any such changes
shall not be deemed circumstances justifying the termination or extinguishment of this Easement
Deed. In addition, the inability of Grantor, or the Grantor's heirs, successors or assigns, to
conduct or implement any or all of the uses permitted under this Easement Deed, or the
unprofitability of doing so, shall not impair the validity of this Easement Deed or be considered
grounds for its termination or extinguishment.
If circumstances arise in the future that render the purposes of this Easement Deed
impossible to accomplish, this Easement Deed can only be terminated or extinguished, whether
in whole or in part, by judicial proceedings in a court of competent jurisdiction. The exclusive
venue for such a dispute is the county in which the Property is located. Each party shall promptly
notify the other in writing when it first learns of such circumstances. The amount of the proceeds
to which the Grantee shall be entitled, after the satisfaction of prior claims, from any sale,
exchange, or involuntary conversion of all or any portion of the Property subsequent to such
termination or extinguishment, shall be determined, unless otherwise provided by Colorado law
at the time, in accordance with this Paragraph 14. The Grantee shall use all such proceeds in a
manner consistent with the conservation purposes of this Easement Deed.
14.2 Condemnation. If all or any part of the Property is taken by exercise of the power
of eminent domain or acquired by purchase in lieu of condemnation, whether by public,
corporate, or other authority, so as to terminate this Easement, in whole or in part, Grantor and
the Grantee shall act jointly to recover the full value of the interests in the Property subject to the
taking or in-lieu purchase and all direct or 'incidental damages resulting therefrom. All expenses
reasonably incurred by Grantor and the Grantee in connection with the taking or in-lieu purchase
shall be paid out of the amount recovered. The Grantee shall be entitled to compensation in
accordance with applicable law from any sale, exchange, condemnation, or other involuntary or
voluntary conversion of all or any portion of the Property subsequent to such taking or in-lieu
purchase resulting in termination or extinguishment. The Grantee's compensation shall be an
amount equal to the Easement value percentage listed in Paragraph 13 above, multiplied by the
amount of the full proceeds from any sale, exchange, condemnation, or other involuntary or
McCormick-Sawmill Parcel 1 12 -
Conservation Easement
/ i
5
voluntary conversion of all or a portion of the Property. The Grantee shall use its proceeds, if
any, in a manner consistent with the conservation purposes of this Easement.
14.3 Application of Proceeds. The Grantee shall use any proceeds received under the
circumstances described in this Paragraph, if any, in a manner consistent with its conservation
purposes, which are exemplified by this grant.
15. Assignment. This Easement is transferable, but the Grantee may assign its rights
and obligations under this Easement only to an organization that (a) is a qualified organization at
the time of transfer under Section 170(h) of the Internal Revenue Code of 1986, as amended (or
any successor provision then applicable), and the applicable regulations promulgated thereunder,
(b) is authorized to acquire and hold conservation easements under Colorado law, (c) agrees to
assume the responsibility imposed on the Grantee by this Easement. The Grantee shall provide
the Grantor with a written request to assign the Easement at least forty-five (45) days prior to the
date of the assignment transaction. The Grantor may disapprove of the transfer for any reason,
including but not limited to, the holder's desire to sell its interest in the Property.
16. Subsequent transfers. Grantor shall incorporate the terms and conditions of this
Easement in any deed or other legal instrument by which it divests itself of any interest in all or a
portion of the Property,. except conveyance of a leasehold interest that is no longer than one year
in duration. Grantor further agrees to give written notice to the Grantee of the transfer of any
interest at least forty-five (45) days prior to the date of such transfer. The failure of Grantor to
perform any act required by this paragraph shall not impair the validity of this Easement or limit
its enforceability in any way.
17. Estoppel Certificates. Upon request by Grantor, The Grantee shall provide a
document or estoppel certificate to certify Grantor's compliance, if the same is appropriate under
the circumstances surrounding the request.
18. Notices. Any notice, demand, request, consent, approval, or communication that
either party desires or is required to give to the other shall be in writing and either served
personally or sent by first class mail, postage prepaid, addressed as follows or to such other
address as either party from time to time shall designate by written notice to the other:
To Grantor: C.R.V. Properties LLC
c/o Robert McCormick
117 Redstone Blvd.
Redstone, Colorado 81623
To the Grantee:
Pitkin County Board of County Commissioners
530 East Main Street
Aspen, Colorado 81611
Phone: 970-920-5232
Fax: 970 920-5198
McCormick-Sawmill Pazcel 1 13
Conservation Easement
iG
19. Recordation. The Grantee shall record this instrument in timely fashion in the
official records of Pitkin County, Colorado, and may re-record it at any time as may be
required to preserve its rights in this Easement Deed.
20. Amendment. If the circumstances arise under which an amendment to or
modification of this instrument would be appropriate, Grantor and the Grantee are free to
jointly amend this instrument; provided that no amendment shall be allowed that will affect
the qualifications of this instrument under any applicable laws. Any amendment must be
consistent with the conservation purposes of this instrument and may not affect its perpetual
duration. Any amendment must be in writing, signed by all Parties, and recorded in the
records of the Clerk and Recorder of Pitkin County, Colorado.
21. General Provisions.
21.1 Exhibits. The following Exhibits are attached to and incorporated by reference
into this conservation Easement Deed. Exhibit A: Property Legal Description, Exhibit B: Map
of the Property, Exhibit C: List of Title Exceptions.
21.2 Definitions. The terms "Grantor" and "Grantee," wherever used herein, and any
pronouns used in place of those terms, shall be deemed to include, respectively, Grantor and its
heirs, personal representatives, executors, administrators, successors and assigns, and the
Grantee, their successors and assigns.
21.3 Controlling Law. The interpretation and performance of this Easement Deed shall
be governed by the laws of the State of Colorado.
21.4 Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Easement Deed shall be liberally construed in favor of the grant to effect
the purposes of the Easement and the policy and purpose of C.R.S. §38-30.5-101 et~seq. If any
provision in this instrument is found to be ambiguous, an interpretation consistent with the
purposes of the Easement that would render the provision valid shall be favored over any
interpretation that would render it invalid. The common law rules of disfavoring restrictions on
the use of real property and construing restrictions in favor of the free and unrestricted use of real
property shall not apply to interpretations of this Easement Deed or to disputes between the
Parties concerning the meaning of particular provisions of this Easement Deed.
21.5 Severability. If any provision of this Easement Deed, or the application thereof to
any person or circumstance, is found to be invalid, the remainder of the provisions of this
Easement Deed, or the application of such provision to persons or circumstances other than those
as to which it is found to be invalid, as the case may be, shall be deemed severable and remain in
full force and effect.
21.6 Entire Agreement. This instrument sets forth the entire agreement between the
Parties with respect to the Easement and supersedes all prior discussions, negotiations,
understandings, or agreements relating to the Easement, all of which are merged herein.
21.7 No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of
Grantor's title in any respect.
McCormick-Sawmill Parcel 1 14
Conservation Easement
~~
21.8 Joint Obli ation. The obligations imposed 'by this Easement Deed upon Grantor
shall be joint and several (in the event that there is more than one Grantor).
21.9 Successors. The covenants, terms, conditions, and restrictions of this Easement
Deed shall be binding upon, and inure to the benefit of, the Parties hereto and their respective
personal representatives, heirs, successors, and assigns and shall continue as a servitude running
in perpetuity with the Property, unless otherwise specified herein.
21.10 Termination of Rights and Obli ations. 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.
21.11 Captions. The captions in this instrument have been inserted solely for
convenience of reference and are not a part of this instrument and shall have no effect upon
construction or interpretation.
21.12 No Third Party Beneficiaries. This Easement is entered into by and between
Grantor and the Grantee, and is solely for the benefit of Grantor, the Grantee, and their
respective successors and assigns for the purposes set forth herein, and does not create rights or
responsibilities in any third parties beyond Grantor, the Grantee, and their respective successors
and assigns.
21.13 Counterparts. The Parties may execute this instrument in two or more
counterparts, which shall, in the aggregate, be signed by all Parties; each counterpart shall be
deemed an original instrument as against any party who has signed it. In the event of any
disparity between the counterparts produced, the recorded counterpart shall be controlling.
21.14 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.
21.15 Development Rights. Except for the one (1) transferrable development right
issued by Grantee to Grantor in partial consideration for this Easement and prior to the execution
thereof, Grantor hereby grants to the Grantee all development rights except as otherwise
expressly reserved by Grantor herein, and the parties agree that such rights are hereby released,
terminated and extinguished, and may not be used on or transferred off of the Property to any
other property adjacent or otherwise or used for the purpose of calculating permissible lot yield
of the Property or any other property.
TO HAVE AND TO HOLD unto Grantee, their successors, and assigns forever.
McCormick-sawmill Parcel 1 15
Conservation Easement
/8~
IN WITNESS WHEREOF, Grantor and the Grantee have executed this Deed of
Conservation Easement as of the date first written above.
GRANTOR:
CVR Properties, LLC
Byr~ ~' ~ ~~-~
Robert E. McCormick, Manager
STATE OF COLORADO )
_ ) ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this ~ day of
2009, by Robert E. McCormick, Manager of Robert McCormick, LLC
Witness my hand and official seal.
My commission expires: ~ (~ l ~1 f p~1
Notary u lic
~~~~~ S Tip/s'j'
~~• aOTARY
~.
PUBL~G ••ao
~~qT~ OF C~~Q~~
M`r C~T~ ~ ~~ IRES
McCormick-Sawmill Parcel 1 1C
Conservation Easement /
GRANTEE:
By ~~~ -
Patti Kay-Clapper
Title: Chair of the Board of County Commissioners of Pitkin County, Colorado
STATE OF COLORADO )
)5S.
COUNTY OF PITKIN }
The foregoing document was acknowledged before me on IQ 1 ~,. oZGbq , by
Patti Kay-Clapper, Chair of the BOARD OF COUNTY COMMISSIONERS O PITKIN
COUNTY, Colorado, a body corporate and politic,
Witness my hand and official sea].
My commission expires: ~ / - Z- ~ D
ary Public
`ypTAR A
.• •.
D
®~c`•~....o••~O
~dLORA~
McCormick-Sawmill Parcel I 1']
Conservation Easement
~~
EXHIBIT A
Legal Description
2dI08 G't7WSFRyiORaN FASE7IENT
A tract of land, vs dascr~bad in Bovk 737 at Poge 19Z of the Pitkin County Records, situated in
the NE1/45W7/4 vnd in the 5E1/4 of Section 20 and in the NEf/4 of Section a^9 all in Township
70 South, Range 88 West of the 6th Principal Mefidian, Pitkin County, Colorado. and being mare
porticWarty described as follows:
Beginning at a paint on the Easterly right-of-way line of a 30 foot wide access easement as bu,7t
and in place whence a stone found in place for the Witness Comer fo the .Southwest Comer of said
Sectrbn, (also being the Witness Garner to the North Hest Comer of said Section 29) bears
553'1608°W. 3527.63 feet; thence along said Easterly right-of-way Gne on the following two (2)
courses N.29' 19'10 397.45 feet: thence 136 76 feet `along (he arc of a 725 33 loaf radius curve
fv the nght, the cord of whicfi bears N.34'43"15 E 136.55 feet; thence leaving said Easterly
right-of--nay line on o course bearing 5.30'00'09 E for 22Z.6~ feet,- thence South 595.50 feet;
thence 5.62'03'08°E. 968.65 feet; thence South 3940.34 fast to a poirrt on the Easl-West canferlina
of sold Sections 29; thence 5 89'4358'W. 304.24 feet along said East-West centerline; thence
North 3987.80 feet; thence N.65"10'01 "W. 887,76 feet; ifrence N,11'0928~: 1IJ5.37 feet to a point
:n the center of a 30 foot wide road right-of-way as bvrlt and ;n place (said rood known os
SaNmiU Hill Road); thence along the centerline of sold rood the following four (4) courses,' 56.59
feet long the ar= of a 72.43 foot radius curve fa the left, the chord of which bears N.50'i4'45~1!
55.16 feet: thence 51.64 feet along the arc of a 74.176 foot radius curve to the right the chard
of which bears N.41 02'16 YV. 77.57 feef,• thence N.09'.27 4B Jt! 63.76 feed thence 78.69 feat along
the arc of a 6B.fi6 foot radius curve to the right, the chord of which bear N.23'2f 58 E 74.45
feet; , thence leovii~q said rood center /ix on a course bearing N.64'24 55'W. for 83.78 feet to the
point of beginnr'ng, canfaining 35.04 acres more or less.
TDGETHER WITH
A por=e! of /and located within SE'1/4 of Section 20, Township 10 South, Range 88 West of the 6th
P, N., havmq o description based upon a bearing ar N.Q0Z77'23 ~ tram tf:a Ssct~an Comer common
fv Sections 19, 2D 79 and 30 (mvnvmenfed by o 3-1/4' aluminum cap B.L.M.) to the Section
Corner common to Sections 17, 1$ 19 and 2O (monumenfed by a 3-1/4' brass cap U,S.G.L.O.J,
with ap other bearings relative fherzta and being mar= particularly described as fellows
Beginning at a point on the southwesterly right of way tine of a thirty (30) foot access easement
from whence the 1/4 Gamer common to Sections 20 and 29 bears 50T15'231'V. ZD47.88 feet;
thence along said right of way line along the arc of o non-tangent curve to the left 88.22 feet,
said curve having a radius of 170.33 feet and o chord bearing and distance of N 44'p9 29 E. 87.24
feed thence leavng said right of way me S 64'05'34"E. 84.75 feet; thence along the arc of a
non-tangent curve to the right 7869 feel, said curve having a radius of 68.66 feet and a chord
bearing and distance of .2321 58'11: 74.45 le=t; thenre 5.09 Z7"46 E 83.76 feed thence along the
arc of a tangent curve to the left 2.01 feat, said cuivs having a radius of 73.80 feet vnd a chard
bearing and d~"stance of 5 f0'f440 E 2.01 feet; thence N,4T3875"tf'. 159.39 feel to the Point of
beginning. said parcel contains 0.232 acres, more or less.
EXCEPTING THEREFROM
A parcel of land located Within the SEl/4~ Section 2D, Township 117 South, Range &8 West of the
6th P.M., hoeing a descrption based upon o bearing of N.DO'07'23 E from the Section Corner
common to Secbbns f 9, 20, 29 and 3D (monumen{ed by o 3-1/4' aluminum cop B.L.N.) fo the
Sect~bn Corner common to 5ectr'ons 17, 18, 19 and 20 (monumented by o 3-1/4' brass cap
U.S.~ L.O.), with all other bearings relative thereto and being mare particularly described as follows:
Beginning of o point from whence the l/4 Corner common fo Sections ~ 2D and 29 .bears
S 14'.33341: 1786.27 feet; thence N. ll'0928~ 10537 feet:• thence along the arc of a
non-tangent curve to the left 56.59 feet, said curve haw'ng o radius of 7243 feet and o chard
bearing and distance of N,SD'14 45 IN, 55.16 feet; thence along the arc of tangent curve fo right
79.63 feet said curve having o radius of 74.06 feet and a chord bearing and distance of
N.41 43;30ti1! 75.85 feet; thence 54T38'25 E 267.TZ feet; thence 5. f 1'D978'W. 67.94 feet; thence
N.65'1 D'Ol ~1: 773.50 (set to the Pv;nt of Beginning, said parcel contains 0.269 acres, more ar less.
~/
EXHIBIT B
Map of Property
zvv9 CONSERVATION EASEJNENT
PR£PAR~D FOR CRV PROP~TiTI£S LtC
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rmtrn covrrn ; cuLURa~u
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EXHIBIT "C"
1. Taxes for the year 2009 not yet due or payable.
2. Right. of the proprietor of a vein or lode to extract and remove his ore therefrom, should the
same be found to penetrate or intersect the premises hereby granted and right of way for
ditches or canals constructed by the authority of the United States as reserved in United
States•Patent recorded September. 22, 1903 in Book 55 at Page 122.
3. Right of the proprietor of a vein or lode to extract and remove his ore therefrom, should the
same be found to penetrate or intersect the premises hereby granted and right of way for
ditches or canals constructed by the authority of the United States as reserved in United
States Patent recorded August 25, 1898 in Book 55 at Page 85.
4. An undivided one-half (1/2) of all oil, gas and other minerals in the subject lands, as set forth in
instrument recorded June 7, 1957 in Book 181 at Page 434, and any and all assignments
thereof.
5. Easement 30 feet in width as constructed and in place as evidenced in Quit Claim Deed
recorded November 10, 1975 in Book 305 at Page 238 and Special Warranty Deed recorded
December 30, 1993 in Book 737 at Page 192 and in Special Warranty Deed recorded March
3,.1995 in Book 775 at Page 364.
6. Terms, conditions, provisions, obligations and easements as set forth in Quit Claim Deed
recorded March 3, 1995 in Book 775 at Page 358 (easement for ingress and egress to the
property).. .
7. Easement and right of way for construction, operation and maintenance of water line granted
to Redstone Water and Sanitation District as set forth in Quit Claim Deed recorded January
31, 1995 in Book 772 at Page 920 and Correction Quit Claim Deed recorded February 2, 1995
in Book 773 at Page 173 and Quit Claim Deed recorded June 15, 1995 in Book 783 at Page
564.
8. Easements, rights of way and all matters as disclosed on Plat of CRV Properties LLC 1041
Hazard review Site Plan recorded April 13, 2006 in Plat Book 78 at Page 67. •
9. Easements, rights of way and all matters as disclosed on Plat of Boundary Line Adjustment
recorded April 28, 2006 in Plat Book 78 at Page 95.
10. Terms, conditions, provisions, obligations and all matters as set forth in Resolution of the
Pitkin County Community Development recorded April 7, 2009 as Reception No. 557840 as
Resolution No. 23 Series of 2009.
11. Encroachments for Sawmill Hill Road (30 foot wide access easement) as disclosed by Survey
of Wilmore grid Company dated February 10, 2009 as Job No. J09025.
12. Easements, rights of way and all matters as disclosed on Subdivision Exemption for Lot Line
Adjustment recorded April 17, 2009 in Plat Book 90 at Page 87.
~3
TRAIL AND ACCESSAND ADMINISTRATIVE ACCESS EASEMENT
THIS PUBLIC TRAIL AND ACCESSAND ACCESS EASEMENT (the "Trail
and Access Easement"), made and entered into this ~5~'day oft, 2009, by and
between Robert E. McCormick and Deborah K. McCormick ("Grantor"), to and for the
benefit of Board of County Commissioners of Pitkin County, a local body politic, 530
East Main St., Aspen, CO 81611 (collectively referred to as "Parties"),
RECITALS:
1. Grantor is the record owner of certain real property located in
Pitkin County, known as the Gatehouse Parcel (the "Property"), that lies adjacent
to lands placed under conservation easement to Grantee and other lands owned in
fee by Grantee on what is commonly known as Sawmill Hill above the
community of Redstone, and
2. Grantor desires by this instrument to establish and to grant to
Grantee a perpetual Trail and Access Easement over the property of Grantor
which would follow the Sawmill HiII Road which traverses lands of the Grantor,
and
3. Grantee desires by this instrument (a) to accept said Trail and 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 Trail and Access Easement. Grantor hereby grants,
transfers and conveys unto Grantee and its successors and assigns, for the use
and benefit of the general public anon-exclusive perpetual Trail and Access
Easement along the existing Sawmill Hill Road where it occurs on the southern
boundary of the Property, as further depicted on Exhibit A. Use of the Trail and
Access easement shall be exclusively for non-motorized access by ice climbers
between November 15 and April 15, and for general access by employees of
Pitkin County for management of lands on Sawmill Hill.
McCormick Parcel 1Trai1 and Access Easement
? `~
2. Trail and Access Use Restrictions.
(a) General Public use of the Trail and Access Easement shall be
exclusively non motorized for ice climbers to access the a feature commonly
known as the Redstone Pillar which is located on lands owned outright by
Grantee, between November 15 and April 15. 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.
(b) Employees of Pitkin County may utilize the Trail and Access
Easement in official county vehicles for maintenance and supervision of County
owned lands on Sawmill Hill.
(c) The Trail and Access 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 and Access Easement shall control wherever they are
more restrictive than the provisions of said Title XII.
3. Grantor's immunity and Grantee's Obligation to insure. The parties
expressly acknowledge that the Trail and Access Easement is granted for a
"recreational purpose" under C.R.S. Section 33-41-101, et seg., 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 Trail and Access Easement,
Grantor shall have no obligation to repair, clear or otherwise maintain the area
within the Trail and 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 Trail and Access Easement for
public non-motorized travel or otherwise, or due to the condition of the Public
Trail and Access Area.
Grantee further agrees to add Grantor (and its successors and assigns in
the ownership of the underlying real property traversed by the Trail and 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 Trail and Access 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.
McCormick Parcel ITrail and Access Easement 2
~~
4. Attorneys' Fees. In the event the interpretation or enforcement of
this Trail and 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 Trail and 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.
5. 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 and 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 Trail and
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 Trail and Access Easement.
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals as of the day and year first above written.
GRANTOR:
By: ~~ ~ ~~ ~~s
Robert E. McCormick
STATE OF COLORADO )
ss:
COUNTY OF P3~~fi'~~c.~ 1~ )
The foregoing instrument was acknowledged before me this 1.~ day of
2009, by Robert E. McCormick.
Witness my hand and official seal.
My commission expires:~(~I~i
Not~/Publf c
c'~\F E R S TFA/~
. ~ • ~OTgRy.
cn~ . 'OV9L1G •`~
'9r ' .... • ' ~Q~
~~F C4~~~
MY COMMISSION EXp~RES
~fpBER 9, ?Utt
McCormick Parcel 1Trai1 and Access Easement
~...
~G
By: ~ ~
Deborah K. McCormick
STATE OF COLORADO )
ss.
COUNTY OF-~'F~Ct~q 1-~. )
~~T~h~foregoing instrument was acknowledged before me this ~ ~J day of
-~~~~=~'-' , 2009, by Deborah K. McCormick.
Witness my hand and official seal.
My commission expires: 1(~ ~ ~,~(~ ~
GRANTEE:
Pitkin County, Colorado
By:
Patti Kay-Clapper, Chair
ATTEST:
(COUNTY OF PITKIN )
~`F ~~ s rFp's
>~~•~~TA/Q~y
~_
Notary u lic ~,' jOU8~.1C '~o
l,9~~ O f CO`O~4p
MY COMMISSION EXPIRES
OCTOBER 9, 2011
The foregoing instrument was acknowledged before me this day of
2009, by Patti Kay-Clapper, Chair of the Board of County
Commissioners of Pitkin County, Colorado, and attested to
by
Witness my hand and off cial seal.
Notary Public
McCormick Parcel 1Trai1 and Access Easement 4
My commission expires:
d
By:
Deborah K. McCormick
STATE OF COLORADO
ss.
COUNTY OF PITKIN )
The foregoing instrument was owledged before me this
2009, by Debo K. McCormick.
Witness my hand official seal.
My com ion expires:
GRANTEE:
day of
Notary Public
Pitkin County, Colorado
By: -I"~~
Patti Kay-Cl per, Chair
(COI~'NTY OF PITKIN d )
The foregoing instrument was acknowledged before me this ~ day of
! L , 2009, by Patti Kay-Clapper, Chair of the Board of County
Commis?rs of Pitk~i Co ty, Colorado, and attested to
fitness my hand and official seal.
My commission expires: ~p~ ~'~~ " a OD
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~ N
DEED OF CONSERVATION EASEMENT IN GROSS
SAWMILL HILL PARCEL 1
THIS D ED OF CONSERVATION EASEMENT ("Easement Deed") is granted this
.~5rt~ day of ,,,. , 2009, by CVR Properties, LLC, 117 Redstone Blvd., Redstone, CO
81623 ("Grantor"), to and for the benefit of Board of County Commissioners of Pitkin County, a
body corporate and politic, 530 East Main St., Aspen, CO 81611 (the "Grantee")(collectively,
the "Parties").
The following exhibits are attached hereto:
Exhibit A Description of Property
Exhibit B Map of Property
Exhibit C Title Exceptions
RECITALS
WHEREAS, Grantor is the sole owner in fee simple of certain real property in Pitkin
County, State of Colorado, more particularly described in Exhibit A (the "Property"). The
Property comprises approximately 35.003 acres of land; and
WHEREAS, the Property possesses outstanding natural, scenic, open space, wildlife,
historic, and recreational values (collectively, "Conservation Values") of importance to the
Grantee, the people of Pitkin County, and the people of the State of Colorado that are worthy of
preservation; and
WHEREAS, the Property is adjacent the West Elk Historic and Scenic Byway and its
protection secures the view plane between the byway and the historic Redstone Castle; and
WHEREAS the Property lies between the historic Redstone Inn and historic Redstone
Castle and constitutes a scenic buffer between these which is important to the cultural heritage of
early settlement in the mountain west; and
WHEREAS, the specific Conservation Values of the Property will be documented in an
inventory of relevant features of the Property, ("Baseline Documentation Report") to be
completed by July 1, 2009, and may be supplemented with reports, maps, photographs, and other
documentation prepared at the time the easement herein was granted and that are on file with the
Grantee, that the Parties agree to in good faith verify that this Baseline Documentation Report
will accurately represent the Property at the time of this grant and that is intended to serve as an
objective information baseline for monitoring compliance with the terms of this grant.
WHEREAS, Grantor intends that the Conservation Values of the Property be preserved
and maintained by the continuation of land use patterns, including, without limitation, those
relating to fishery and wildlife habitat management, protection of historic resources, and public
access across the Property for ice climbers accessing the Redstone Pillar ice climb located on
Pitkin County owned lands east of the Property; and
McCormick Sawmill Hill Parcel 1
Conservation Easement
RECEP~'1C3N: 558155, 04!2112009 at
03:45:43 P~lI,
'! of 20, Ft $0.00 Doc Code DEED
Cl7iVSEt~V
Janice K. Vos Caudill, Pitkin County, CO
jc'
WHEREAS, Grantor intends, as owner of the Property, to convey to the Grantee the right
to preserve and protect the Conservation Values of the Property in perpetuity; and
WHEREAS, the Grantee agrees by accepting this grant to honor the intentions of Grantor
stated herein and to preserve and protect in perpetuity the Conservation Values of the Property
for the benefit of this generation and the generations to come; and
WHEREAS, the Grantee is a government organization described in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended (the "Code") and is apublicly-supported
organization as described in Section 170(b)(1)(A) of the Code whose purpose includes the
preservation and protection of the natural, scenic, unique high quality wetlands habitat and
riparian habitat of the Crystal Valley, including the area in which the Property is located, by
assisting landowners who wish to protect their land in perpetuity, and area "qualified
organization" eligible to receive conservation easements within the meaning of Section 170(h)(3)
of the Code; and
WHEREAS, the 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 in a natural, scenic
or open condition, for wildlife habitat, or for agricultural and other uses or conditions consistent
with the protection of open land in Colorado; and
WHEREAS the property encumbered by this conservation easement is traversed by a
private road known as Sawmill Hill Road Grantee is entitled to utilize the road for maintenance
purposes on its adjacent lands and also ice climbers are permitted access across the Property
between November 15 and April 15 for the purposes of accessing the Redstone Pillar.
NOW, THEREFORE, in consideration of the matters above, the mutual covenants,
terms, conditions and restrictions contained herein, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Grant. Grantor hereby voluntarily and irrevocably grants and conveys to the
Grantee a perpetual Conservation Easement in Gross (the "Easement"), pursuant to C.R.S. §38-
30.5-101 et seq., consisting of the rights and restrictions enumerated herein, over and across the
Property described in Exhibit A attached hereto, to have and to hold said Easement unto the
Grantee and their successors and assigns forever. The Easement shall constitute a binding
servitude upon the Property and shall be subject to prior reservations, easements, encumbrances
and exceptions of record, except as otherwise set forth herein.
2. Purposes. The purpose of this Easement is to preserve and protect the
Conservation Values of the Property in perpetuity. This purpose is in accordance with § 170(h)
of the Internal Revenue Code as amended, and the Treasury Regulations adopted pursuant
thereto. To achieve this Purpose, Grantor intends to convey this Deed of Conservation Easement
to the Grantee to ensure that the Conservation Values of the Property will be preserved and
protected forever. Subject to the purpose of this Easement, Grantor and the Grantee intend to
permit only uses of the Property that do not substantially diminish or impair the Property's
Conservation Values and to prevent any use of the Property that will substantially impair or
interfere with protecting the Property's Conservation Values. It is the intent of the Grantor to
McCormick-Sawmill Parcel 1 2
Conservation Easement
3~
preserve the Property in its natural, scenic, and open space condition to preserve the open space
character, wildlife habitat, and scenic qualities of the Property. Notwithstanding the foregoing,
nothing in this Easement is intended to compel a specific use of the Property, such as agriculture,
other than the preservation and protection of the Property's Conservation Values.
3. Baseline Documentation. The parties acknowledge that a written report will be
prepared, reviewed, and approved by both parties (the "Baseline Documentation Report") by
July 1, 2009. A copy of the Baseline Documentation Report will be on file with both parties and
by this reference made a part hereof. The parties acknowledge that the Baseline Documentation
Report is intended to establish the condition of the Property subject to the Easement as of the
date written above. The parties further agree that, in the event a controversy arises with respect
to the condition of the Property as of the conveyance date of the Easement, or compliance with
or violation of any term or provision of this Easement, the parties may use the Baseline
Documentation Report and any other relevant or material documents, surveys, reports, and other
information to assist in resolving a controversy.
4. Rights of Grantee. To accomplish the purposes of this Easement, Grantor
conveys the following rights to the Grantee:
4.1 The right to preserve and protect the Conservation Values of the Property in
perpetuity; and
4.2 The right to enter upon the Property at reasonable times, to inspect the Property
thoroughly, to monitor Grantor's compliance with and otherwise enforce the terms of this
Easement Deed; provided that such entry shall be upon thirty-six hour prior notice to Grantor, and
except that no such notice shall be required in the event the Grantee reasonably believes that
immediate entry upon the Property is essential to prevent or mitigate a violation of this Easement
Deed. The Grantee shall not unreasonably interfere with Grantor's use and quiet enjoyment of
the Property; and
4.3 The right to prevent any activity on or use of the Property that is inconsistent with
the purposes of this Easement, or that may have an adverse impact on the Conservation Values of
the Property, and to require the restoration of such areas or features of the Property that are
damaged by any inconsistent activity or use; and
4.4 Any other rights that the Parties may approve consistent with the purposes of this
Easement and the Conservation Values, such as habitat enhancement projects, recreational
enhancements such as fishing trails, or scientific studies.
4.5 The Grantee shall have the right to utilize the Sawmill Hill Road for land
management activities on adjacent lands owned outright by Grantee.
4.6 Public access by ice climbers seeking to access the Redstone Pillar ice climb is
provided across the property during the period November 15 through April 15,. Other than
Grantor's and Grantor's invitees' dogs, this limited public access shall permit no dogs on Castle
Road.
McCormick-Sawmill Parcel 1 3
Conservation Easement
3~
4.7 The public access restrictions herein shall remain in perpetuity, unless amended
by subsequent agreement of Grantor and Grantee.
5. Prohibited Uses. Any activity on or use of the Property inconsistent with the
purposes of this Easement is prohibited. Without limiting the generality of the foregoing, the
following activities and uses are expressly prohibited:
5.1 The change, disturbance, alteration, or impairment of the relatively natural habitat
for plants, wildlife, or similar ecosystems within and upon the Property, except as provided
herein.
5.2 The construction, placement, reconstruction of any buildings, structures, mobile
homes, or billboards, except as otherwise expressly provided herein.
5.3 The conveyance of new easements, rights-of--ways, the paving or grading of new
roadways or the construction of any new roadways without the prior written consent of the
Grantee, which consent shall be in the Grantee's sole discretion.
5.4 The removal, destruction, or cutting of native vegetation, except as necessary for
fire or disease prevention or control of pine beetles, except the cutting of dead, down or
diseaesaed trees or the thinning of trees for forest health under the supervision of the Colorado
State Forest Service and consistent with other applicable laws.
5.5 The introduction of non-native plant or animal species.
5.6 The grazing of livestock except as part of a noxious weed control effort.
5.7 The use of pesticides or herbicides other than for the control of noxious weeds
and/or pests in a manner consistent with sound environmental conservation practices and the
control of bark beetles consistent with other applicable laws.
5.8 The exploration, mining, or extraction of minerals, oil, gas, or other
hydrocarbons, soils, sands, gravel, rock, or other materials on or below the surface of the
Property. Grantor, its heirs, successors, transferees or assigns shall not transfer, lease or
otherwise separate the soil, sand, gravel, rock, oil, natural gas, fuel or any other mineral
substance from the Property.
S.9 Any division, subdivision, or de facto subdivision of the Property, provided
however that boundary changes with adjacent parcels are permitted with the Grantee's written
consent provided that the affected land remains subject to the restrictions contained herein, the
new landowner would agree in writing to abide by the terms of this Deed, and provided that such
boundary changes will not result in additional development on adjacent parcels.
5.10 The use of any motorized vehicles, with the exception of the use of motorized
vehicles incidental and necessary to the use of the Property for land management activities and
for uses and practices by Grantor consistent with this Easement Deed as described in Section 6,
below.
McCormick-Sawmill Parcel 1 4
Conservation Easement
33
5.11 The establishment or maintenance of any commercial feed lot, which shall be
defined for purposes of this Easement Deed as a permanently constructed, confined area or
facility within which the land is not grazed or cropped annually, for purposes of engaging in the
business of the reception and extended feeding and finishing of large numbers of livestock for
hire.
5.12 The accumulation, dumping or other disposal of trash, ashes, garbage, or other
offensive or unsightly refuse on the Property.
5.13 The degradation, pollution, or drainage of any surface or sub-surface water.
5.14 Any use that would increase, or substantially add to the risk of soil erosion.
5.15 Any change in the topography of the Property through the placement therein of
soil, land fill, dredging spoils, or other material, except as incidental and necessary to the
maintenance, repair and replacement of existing roads, which uses shall require no notice to
Grantee except as may otherwise be required under applicable local, state or federal laws, rules
or regulations, and provided that disturbed areas will be revegetated consistent with prudent land
management practices to prevent erosion and the spread of noxious weeds.
5.16 The erection, construction, installation, relocation or use of a communication
facility, a telecommunication facility, a network element or any other telecommunication
facilities, equipment or material that may be used for telecommunications or to provide such
services; except such facilities existing as of the date of this Easement, or personal or low-impact
telecommunications services that do not substantially diminish or impair the Conservation
Values.
5.17 Industrial uses are prohibited on the Property.
5.18 Commercial signs, billboards, awnings, or advertisements shall not be displayed
or placed on the Property. No signs shall significantly diminish or impair the Conservation
Values of the Property.
6. Consistent Uses of the Property. The following uses and practices are
consistent with this Easement Deed. Certain of these consistent uses and practices as may be
expressly identified as being subject to specified conditions, to the notice provision as described
in Paragraph 10, and/or to the requirement of and procedures for prior approval by the Grantee as
described in Paragraph 9:
6.1 Passive recreational uses by Grantor, its guests and invitees, including hiking,
hunting, and the like, as well as camping provided that no permanent facilities are allowed and
no more than 6 persons at one time.
6.2 Such other natural surface trails or paths as may be needed to provide recreational
access to the Redstone Pillar, subject to mutual consent and approval of Grantor and Grantee.
6.3 Land management activities that further the preservation, forest health and/or
restoration of the natural condition of the property.
McCormick-Sawmill Parcel 1 5
Conservation Easement
3y
6.4 Research solely by Grantor's employees and/or subcontractors that focuses on the
natural characteristics or wildlife found on the property.
6.5 Commercial uses that are conducted in a manner that is consistent with § 170(h)
of the United States Internal Revenue Code and the Treasury Regulations adopted pursuant
thereto, are consistent with the purposes of the Easement, and do not substantially diminish or
impair the Property's Conservation Values. It is expressly acknowledged and agreed that those
uses identified in Section 6.1, above, are permitted commercial uses, provided however, that
nothing contained herein is intended to be a land use permit granted by Pitkin County and all
uses contained herein are subject to applicable laws and regulations.
6.6 Trees may be cut, and/or pesticides used, to control insects and disease, to control
invasive non-native species, and to prevent personal injury and property damage and to maintain
forest health. Down, dead or dying trees may be cut for firewood.
6.7 Fences for purposes of reasonable and customary management of wildlife, or for
separation of trails from adjacent private land, provided said fencing does not unduly restrict or
exclude wildlife use of the Property.
6.8 Grantor may continue to use, operate, maintain and repair and replace all existing
roads, utility lines, currently on the Property, and provided that stream bank stabilization to protect
the existing Castle Road is explicit permitted pursuant to this paragraph.
6.9 Castle Road, which is depicted as a 30' access easement on Exhibit B and lies
adjacent to the northwest boundary of this Easement, may be expanded onto the Property, and may
be repaired, replaced, improved and widened as need, only with mutual consent of both Grantor and
Grantee, and with the appropriate land use approval from the Pitkin County Board of County
Commissioners.
7. Reserved Rights. Grantor reserves to itself and to its personal representatives,
heirs, successors, and assigns, all rights accruing from their ownership of the Property, including
the right to engage in all uses of the Property that are consistent with the purposes of this
Easement Deed and that do not have an adverse impact on the Conservation Values. Grantor
shall notify the Grantee in writing, as described in Paragraph 9, before exercising reserved rights
that might have an adverse impact on the Conservation Values.
8. Representations and Warranties. Grantor (only and not his assigns or
successors in interest) represents and warrants that, after reasonable investigation and to the best
of its knowledge:
8.1 No substance defined, listed, or otherwise classified pursuant to any federal, state,
or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise
contaminating to the air, water, or soil, or in any way harmful or threatening to human health or
the environment exists or has been released, generated, treated, stored, used, disposed of,
deposited, abandoned, or transported in, on, from, or across the Property.
8.2 There are not now any underground storage tanks located on the Property,
whether presently in service or closed, abandoned, or decommissioned, and no underground
McCormick-Sawmill Parcel 1 6
Conservation Easement
~/
storage tanks have been removed from the Property in a manner not in compliance with
applicable federal, state, and local laws, regulations, and requirements.
8.3 There is no pending litigation in any way affecting, involving, or relating to the
Property.
8.4 No civil or criminal proceedings or investigations have been instigated at any time
or are now pending, and no notices, claims, demands, or orders have been received, arising out
of any violation or alleged violation of, or failure to comply with, any federal, state, or local law,
regulation, or requirement applicable to the Property or its use, nor do there exist any facts or
circumstances that Grantor might reasonably expect to form the basis for any such proceedings,
investigations, notices, claims, demands, or orders.
8.5 Grantor (only and not his successor or assigns) warrants that Grantor has good
and sufficient title to the Property, subject to the exceptions described on the attached Exhibit C,
that Grantor has good right, full power and lawful authority to grant and convey this Easement,
and hereby promises to defend the same against all claims from persons claiming by, through, or
under Grantor. Grantor further warrants that there are no mortgages or liens on the Property.
9. Notice of Intention to Undertake Certain Permitted Actions. The purpose of
requiring Grantor to notify the Grantee before undertaking certain permitted activities is to afford
the Grantee an opportunity to ensure that the activities in question are designed and carried out in
a manner consistent with the purposes of this Easement Deed. Whenever notice is expressly
required for a permitted use herein, Grantor shall notify the Grantee in writing not less than 45
days prior to the date Grantor intends to undertake the activity in question, unless a different time
period for the giving of notice is provided as to the activity in question. The notice shall describe
the nature, scope, design, location, timetable, and any other material aspect of the proposed
activity in sufficient detail to permit the Grantee to make an informed judgment as to its
consistency with the purposes of this Easement and the Conservation Values.
10. The Grantee's Approval. Whenever this Easement Deed requires that Grantor
obtain the Grantees' approval of any activity on or use of the Property, such approval shall not be
unreasonably withheld or delayed. Where the Grantee's approval is required, the Grantee shall
grant or withhold their approval in writing within 30 days of receipt of Grantor's written request
therefor. The Grantee's approval may be withheld if the Grantee determines that the action as
proposed would be inconsistent with the Conservation Values or the purposes or terms of this
Easement Deed; the reason(s) for such a determination shall be set forth with specificity by the
Grantee in a written notice to Grantor. Where a modification of the proposed use or activity by
Grantor would render the same consistent with the purposes of this Easement Deed and the
Conservation Values, the Grantee shall specify, in such written notice to Grantor, such required
modifications. If the Grantor disagrees with the Grantee's decision, the parties shall attempt to
resolve the dispute in mediation, pursuant to Subparagraph 11.1 below.
11. Grantee's Remedies: Enforcement. The Grantee shall have the right to prevent
and correct or require correction of violations of the terms and purposes of this Easement Deed.
The Grantee may enter the Property for the purpose of inspecting for violations in accordance
with Subparagraph 4.2 above. If the Grantee finds what it believes is a violation, or a threat of ~
McCormick-Sawmill Parcel 1 7
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3~
violation, the Grantee shall notify Grantor in writing of the nature of the alleged violation. Upon
receipt of this written notice, Grantor shall either: (1) restore the Property as best possible to its
condition prior to the violation in accordance with a plan approved by the Grantee; or (2) provide
a written explanation to Grantee of the reason why the alleged violation should be permitted. If
the Grantee is not satisfied with Grantor's written explanation, all Parties agree to meet as soon as
possible to resolve this difference. If a resolution of this difference cannot be achieved at the
meeting, all Parties agree to meet with a mutually acceptable mediator to attempt to resolve the
dispute pursuant to Subparagraph 13.1 below.
Should mediation fail to resolve the dispute within sixty (60) days of Grantee written
notice to Grantor of the alleged violation, or by such other date as the Parties may mutually
agree, the Parties may take appropriate legal action pursuant to the Paragraphs below, including
seeking injunctive relief by ex pane means if necessary, to stop an alleged violation. The
exclusive venue for any such suit is in the County in which the Property is located. The failure
of Grantee to discover a violation or to take action shall not waive any of the Grantee's rights,
claims or interests in pursuing any such action at a later date. Nothing in this conservation
easement serves to waive any immunity at law, including immunity granted under the Colorado
Governmental Immunities Act, Section 24-10-101 et seq., C.R.S., or any other rights,
protections, immunities, defenses or limitations on liability provided by law, and subject to any
applicable provisions of the Colorado Constitution and applicable laws.
11.1 Mediation. If a dispute arises between the Parties concerning the consistency of any
proposed use or activity with the purpose of this Easement Deed, and Grantor agrees not to
proceed with the use or activity pending resolution of the dispute, either party may refer the
dispute to mediation by request made in writing upon the other. Within ten (10) days of the
receipt of such request, the Parties shall select a single trained and impartial mediator with
experience in Conservation Easement Deeds and other land preservation tools. If the Parties are
unable to agree on the selection of a single mediator, then the Parties shall each select a trained
and impartial mediator with experience in Conservation Easement Deeds and other land
preservation tools, and those two mediators shall select a similarly skilled mediator who shall
alone mediate the dispute. Mediation shall then proceed in accordance with the following
guidelines:
A. Purpose. The purpose of the mediation is to: (1) promote discussion
between the Parties; (2) assist the Parties to develop and exchange
pertinent information concerning the issues in dispute; and (3) assist the
Parties to develop proposals that will enable them to arrive at a mutually
acceptable resolution of the controversy. The mediation is not intended to
result in any express or de facto modification or amendment of the terms,
conditions, or restrictions of this Easement Deed.
B. Participation. The mediator may meet with the Parties and their counsel
jointly or ex pane. The Parties agree that they will participate in the
mediation process in good faith and expeditiously, attending all sessions
scheduled by the mediator, except in cases when the Grantee believes that
Conservation Values are continuing to be harmed during the mediation
process in which case the Grantee can suspend its involvement in the
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37
mediation to remedy this threat of ongoing violation. Representatives of
the Parties with settlement authority will attend mediation sessions as
required by the mediator.
C. Confidentiality. All information presented to the mediator shall be
deemed confidential and shall be disclosed by the mediator only with the
consent of the Parties or their respective counsel. The mediator shall not
be subject to subpoena by any party in any subsequent litigation. No
statements made or documents prepared for mediation sessions shall be
disclosed in any subsequent proceedings or construed as an admission of a
party.
D. Time Period. Neither party shall be obligated to continue the mediation
process beyond a period of sixty (60) days from the date of receipt of the
initial request or if the mediator concludes that there is no reasonable
likelihood that continuing mediation will result in a mutually agreeable
resolution of the dispute. The Parties shall each bear 50% of the
mediator's fees.
11.2 Injunctive Relief. The Grantee may bring an action at law or in equity, ex pane
as necessary, in a court of competent jurisdiction, to enforce the terms of this Easement Deed and
to enjoin by temporary or permanent injunction a violation, including to require or cause the
restoration of the Property to the condition that existed prior to the violation. The exclusive
venue for such an action is the county in which the Property is located.
11.3 Damages. The Grantee shall be entitled to recover damages for violation of the
terms of this Easement Deed or injury to the Conservation Values, including, without limitation,
damages for the loss of scenic, aesthetic, or environmental values. The Grantee shall apply any
damages recovered to the cost of undertaking any restorative, remediative, corrective action on
the Property. Nothing in this conservation easement serves to waive any immunity at law,
including immunity granted under the Colorado Governmental Immunities Act, Section 24-10-
101 et seq., C.R.S., or any other rights, protections, immunities, defenses or limitations on
liability provided by law, and subject to any applicable provisions of the Colorado Constitution
and applicable laws.
11.4 Emergency Enforcement. If the Grantee reasonably believes an ongoing or
threatened imminent activity violates the Easement Deed, the Grantee may, in their sole
discretion, take immediate legal action as set forth in this Paragraph without prior notice to
Grantor, without waiting for the period provided for cure to expire, and without waiting for the
60 day mediation period to expire. The exclusive venue for any such suit is in the County in
which the Property is located.
11.5 Scope of Relief. The Grantee's rights under this Paragraph apply equally in the
event of either actual or threatened violations of the terms of this Easement Deed. Grantor agrees
that the Grantee's remedies at law for any violation of the terms of this Easement Deed are
inadequate and that the Grantee shall be entitled to the injunctive relief described in
Subparagraph 11.2, both prohibitive and mandatory, in addition to such other relief to which the
McCormick-Sawmill Parcel 1 9
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~~
Grantee may be entitled, including specific performance of the terms of this Easement Deed,
without the necessity of proving either actual damages or the inadequacy of otherwise available
legal remedies. The Grantee's remedies described in this Paragraph shall be cumulative and shall
be in addition to all remedies now or hereafter existing at law or in equity. Nothing in this
conservation easement serves to waive any immunity at law, including immunity granted under
the Colorado Governmental Immunities Act. Section 24-10-101 et seq., C.R.S., or any other
rights, protections, immunities, defenses or limitations on liability provided by law, and subject
to any applicable provisions of the Colorado Constitution and applicable laws.
11.6 Costs of Enforcement. All parties shall bear their own costs and attorneys' fees
in any enforcement action.
11.7 The Grantee's Discretion. Enforcement of the terms of this Easement Deed shall
be at the sole discretion of the Grantee, and any forbearance by the Grantee to exercise their
rights under this Easement Deed in the event of any breach of any term of this Easement Deed by
Grantor shall not be deemed or construed to be a waiver by the Grantee of such term or any
subsequent breach of the same or any other term of this Easement Deed or of any of the
Grantee's rights under this Easement Deed. No delay or omission by the Grantee in the exercise
of any right or remedy upon any breach by Grantor shall impair such right or remedy or be
construed as a waiver.
11.8 Waiver of Certain Defenses. No action shall be commenced or maintained to
enforce the terms of any building restriction described in this Easement Deed, or to compel the
removal of any building or improvement, unless said action is commenced within four (4) years
from the date of the violation for which the action is sought to be brought or maintained. To the
extent that any defense available to Grantor pursuant to C.R.S. §38-41-119 is inconsistent with
the foregoing, Grantor waives that defense.
11.9 Acts Beyond Grantor's Control. Nothing contained in this Easement Deed shall
be construed to entitle the 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. Grantor is not responsible for acts of third parties that Grantor could not reasonably have
anticipated or prevented and who are out of Grantor's control.
12. Costs, Liabilities, Taxes and Environmental Compliance.
12.1 Hold Harmless. The Grantor agrees to use its best faith efforts to hold the
Grantee harmless from liability arising from or in any way connected with: (1) injury to or the
death of any person, or physical damage to any property, resulting from any act, omission,
condition, or other matter related to or occurring on or about the Property, regardless of cause,
unless due solely or in part to the negligence of the Grantee or any of its agents; (2) the presence
or release of hazardous or toxic substances on, under or about the Property, unless due solely or
in part to the negligence of the Grantee or any of its agents, subject to the current constraints or
limitations of Colo. Const. Art. XI, Section 1, as amended from time to time, which constraints
or limitations the County believes currently prohibit it from adopting a strict obligation to hold
McCormick-Sawmill Parcel 1 1 ~
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~~
harmless the Grantee. Nothing contained herein waives or is intended to waive any protections
that may be applicable to the Grantor under the Governmental Immunity Act, Section 24-10-101
et seq., C.R.S., or any other rights, protections, immunities, defenses or limitations on liability
provided by law, and subject to any applicable provisions of the Colorado Constitution and
applicable laws.
Without limiting the foregoing, nothing in this Deed shall be construed as giving rise to
any right or ability in the Grantee, nor shall the Grantee have any right or ability, to exercise
physical or managerial control over the day-to-day operations of the Property, or otherwise to
become an operator with respect to the Property within the meaning of The Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended.
12.2 Costs, Le ag 1 Requirements and Liabilities. Grantor will retain all responsibilities
and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep,
and maintenance of the Property, including weed control and eradication and the maintenance of
adequate liability insurance coverage, which names the Grantee as an additional insured.
Grantor remains solely responsible for obtaining any applicable governmental permits and
approvals for any construction or other activity or use permitted by this Easement, and all such
construction or other activity or use shall be undertaken in accordance with all applicable federal,
state, and local laws, regulations and requirements. Grantor shall keep the Property free of any
liens arising out of any work performed for, materials furnished to, or obligations incurred by
Grantor.
12.3 Taxes. Grantor shall pay before delinquency all taxes, assessments, fees, and
charges of whatever description levied on or assessed against the Property by competent
authority (collectively "Taxes"), including any Taxes imposed upon, or incurred as a result of,
this Easement, and shall furnish the Grantee with satisfactory evidence of payment upon request.
The Grantee is authorized, but in no event obligated, to make or advance any payment of Taxes,
upon ten (10) days prior written notice to Grantor, in accordance with any bill, statement, or
estimate procured from the appropriate authority, without 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 to the Grantee at the lesser of fifteen percent (15%) per
annum, or the maximum rate allowed by law.
12.4 Remediation. If, at any time, there occurs, or has occurred, a release in, on, or
about the Property of any substance now or hereafter defined, listed, or otherwise classified
pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic,
polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or
threatening to human health or the environment ("Release'), Grantor agrees to take all steps
necessary to assure its containment and remediation, including any cleanup that may be required,
unless the release was caused by the Grantee, in which case the Grantee shall be responsible
therefor.
12.5 Control. Nothing in this Grant shall be construed as giving rise, in the absence of
a judicial decree, to any right or ability in the Grantee to exercise physical or managerial control
over the day-to-day operations of the Property, or any of Grantor's activities on the Property, or
otherwise to become an operator with respect to the Property within the meaning of The
McCormick-Sawmill Parcel 1 1 1
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~a
Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended
("CERCLA"), and any Colorado state law counterpart.
13. Real Property Interest. This Easement constitutes a real property interest
immediately vested in the Grantee. The parties stipulate that this Easement has a fair market
value equal a proportion of the property value determined by dividing the value of the Property
encumbered by the Conservation Easement by the value of the Property unencumbered by the
Conservation Easement, based on the June 2, 2008 appraisal by Appraisal Associates of Colorado
For the purposes of this Easement, the ratio of the value of the Easement to the value of the
Property as unencumbered by the Easement shall be 69% and shall remain constant.
14. Extinguishment and Condemnation.
14.1 Extinguishment. In granting this Easement, Grantor has considered the possibility
that uses prohibited by the terms of this Easement Deed may become more economically
valuable than permitted uses and that neighboring properties may be used entirely for such
prohibited uses in the future. It is the intent of the Grantor and the Grantee that any such changes
shall not be deemed circumstances justifying the termination or extinguishment of this Easement
Deed. In addition, the inability of Grantor, or the Grantor's heirs, successors or assigns, to
conduct or implement any or all of the uses permitted under this Easement Deed, or the
unprofitability of doing so, shall not impair the validity of this Easement Deed or be considered
grounds for its termination or extinguishment.
If circumstances arise in the future that render the purposes of this Easement Deed
impossible to accomplish, this Easement Deed can only be terminated or extinguished, whether
in whole or in part, by judicial proceedings in a court of competent jurisdiction. The exclusive
venue for such a dispute is the county in which the Property is located. Each party shall promptly
notify the other in writing when it first learns of such circumstances. The amount of the proceeds
to which the Grantee shall be entitled, after the satisfaction of prior claims, from any sale,
exchange, or involuntary conversion of all or any portion of the Property subsequent to such
termination or extinguishment, shall be determined, unless otherwise provided by Colorado law
at the time, in accordance with this Paragraph 14. The Grantee shall use all such proceeds in a
manner consistent with the conservation purposes of this Easement Deed.
14.2 Condemnation. If all or any part of the Property is taken by exercise of the power
of eminent domain or acquired by purchase in lieu of condemnation, whether by public,
corporate, or other authority, so as to terminate this Easement, in whole or in part, Grantor and
the Grantee shall act jointly to recover the full value of the interests in the Property subject to the
taking or in-lieu purchase and all direct or incidental damages resulting therefrom. All expenses
reasonably incurred by Grantor and the Grantee in connection with the taking or in-lieu purchase
shall be paid out of the amount recovered. The Grantee shall be entitled to compensation in
accordance with applicable law from any sale, exchange, condemnation, or other involuntary or
voluntary conversion of all or any portion of the Property subsequent to such taking or in-lieu
purchase resulting in termination or extinguishment. The Grantee's compensation shall be an
amount equal to the Easement value percentage listed in Paragraph 13 above, multiplied by the
amount of the full proceeds from any sale, exchange, condemnation, or other involuntary or
McCormick-Sawmill Parcel 1 12
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y~
voluntary conversion of all or a portion of the Property. The Grantee shall use its proceeds, if
any, in a manner consistent with the conservation purposes of this Easement.
14.3 Application of Proceeds. The Grantee shall use any proceeds received under the
circumstances described in this Paragraph, if any, in a manner consistent with its conservation
purposes, which are exemplified by this grant.
15. Assignment. This Easement is transferable, but the Grantee may assign its rights
and obligations under this Easement only to an organization that (a) is a qualified organization at
the time of transfer under Section 170(h) of the Internal Revenue Code of 1986, as amended (or
any successor provision then applicable), and the applicable regulations promulgated thereunder,
(b) is authorized to acquire and hold conservation easements under Colorado law, (c) agrees to
assume the responsibility imposed on the Grantee by this Easement. The Grantee shall provide
the Grantor with a written request to assign the Easement at least forty-five (45) days prior to the
date of the assignment transaction. The Grantor may disapprove of the transfer for any reason,
including but not limited to, the holder's desire to sell its interest in the Property.
16. Subsequent transfers. Grantor shall incorporate the terms and conditions of this
Easement in any deed or other legal instrument by which it divests itself of any interest in all or a
portion of the Property, except conveyance of a leasehold interest that is no longer than one year
in duration. Grantor further agrees to give written notice to the Grantee of the transfer of any
interest at least forty-five (45) days prior to the date of such transfer. The failure of Grantor to
perform any act required by this paragraph shall not impair the validity of this Easement or limit
its enforceability in any way.
17. Estoppel Certificates. Upon request by Grantor, The Grantee shall provide a
document or estoppel certificate to certify Grantor's compliance, if the same is appropriate under
the circumstances surrounding the request.
18. Notices. Any notice, demand, request, consent, approval, or communication that
either party desires or is required to give to the other shall be in writing and either served
personally or sent by first class mail, postage prepaid, addressed as follows or to such other
address as either party from time to time shall designate by written notice to the other:
To Grantor: C.R.V. Properties LLC
c/o Robert McCormick
117 Redstone Blvd.
Redstone, Colorado 81623
To the Grantee:
Pitkin County Board of County Commissioners
530 East Main Street
Aspen, Colorado 81611
Phone: 970-920-5232
Fax: 970 920-5198
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19. Recordation. The Grantee shall record this instrument in timely fashion in the
official records of Pitkin County, Colorado, and may re-record it at any time as may be
required to preserve its rights in this Easement Deed.
20. Amendment. If the circumstances arise under which an amendment to or
modification of this instrument would be appropriate, Grantor and the Grantee are free to
jointly amend this instrument; provided that no amendment shall be allowed that will affect
the qualifications of this instrument under any applicable laws. Any amendment must be
consistent with the conservation purposes of this instrument and may not affect its perpetual
duration. Any amendment must be in writing, signed by all Parties, and recorded in the
records of the Clerk and Recorder of Pitkin County, Colorado.
21. General Provisions.
21.1 Exhibits. The following Exhibits are attached to and incorporated by reference
into this conservation Easement Deed. Exhibit A: Property Legal Description, Exhibit B: Map
of the Property, Exhibit C: List of Title Exceptions.
21.2 Definitions. The terms "Grantor" and "Grantee," wherever used herein, and any
pronouns used in place of those terms, shall be deemed to include, respectively, Grantor and its
heirs, personal representatives, executors, administrators, successors and assigns, and the
Grantee, their successors and assigns.
21.3 Controlling Law. The interpretation and performance of this Easement Deed shall
be governed by the laws of the State of Colorado.
21.4 Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Easement Deed shall be liberally construed in favor of the grant to effect
the purposes of the Easement and the policy and purpose of C.R.S. §38-30.5-101 et seq. If any
provision in this instrument is found to be ambiguous, an interpretation consistent with the
purposes of the Easement that would render the provision valid shall be favored over any
interpretation that would render it invalid. The common law rules of disfavoring restrictions on
the use of real property and construing restrictions in favor of the free and unrestricted use of real
property shall not apply to interpretations of this Easement Deed or to disputes between the
Parties concerning the meaning of particular provisions of this Easement Deed.
21.5 Severability. If any provision of this Easement Deed, or the application thereof to
any person or circumstance, is found to be invalid, the remainder of the provisions of this
Easement Deed, or the application of such provision to persons or circumstances other than those
as to which it is found to be invalid, as the case may be, shall be deemed severable and remain in
full force and effect.
21.6 Entire Agreement. This instrument sets forth the entire agreement between the
Parties with respect to the Easement and supersedes all prior discussions, negotiations,
understandings, or agreements relating to the Easement, all of which are merged herein.
21.7 No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of
Grantor's title in any respect.
McCormick-Sawmill Parcel 1 14
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21.8 Joint Obli ag tion. The obligations imposed by this Easement Deed upon Grantor
shall be joint and several (in the event that there is more than one Grantor).
21.9 Successors. The covenants, terms, conditions, and restrictions of this Easement
Deed shall be binding upon, and inure to the benefit of, the Parties hereto and their respective
personal representatives, heirs, successors, and assigns and shall continue as a servitude running
in perpetuity with the Property, unless otherwise specified herein.
21.10 Termination of Rights and Obli atg ions. 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.
21.11 Captions. The captions in this instrument have been inserted solely for
convenience of reference and are not a part of this instrument and shall have no effect upon
construction or interpretation.
21.12 No Third Party Beneficiaries. This Easement is entered into by and between
Grantor and the Grantee, and is solely for the benefit of Grantor, the Grantee, and their
respective successors and assigns for the purposes set forth herein, and does not create rights or
responsibilities in any third parties beyond Grantor, the Grantee, and their respective successors
and assigns.
21.13 Counterparts. The Parties may execute this instrument in two or more
counterparts, which shall, in the aggregate, be signed by all Parties; each counterpart shall be
deemed an original instrument as against any party who has signed it. In the event of any
disparity between the counterparts produced, the recorded counterpart shall be controlling.
21.14 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.
21.15 Development Rights. Except for the one (1) transferrable development right
issued by Grantee to Grantor in partial consideration for this Easement and prior to the execution
thereof, Grantor hereby grants to the Grantee all development rights except as otherwise
expressly reserved by Grantor herein, and the parties agree that such rights are hereby released,
terminated and extinguished, and may not be used on or transferred off of the Property to any
other property adjacent or otherwise or used for the purpose of calculating permissible lot yield
of the Property or any other property.
TO HAVE AND TO HOLD unto Grantee, their successors, and assigns forever.
McCormick-Sawmill Parcel 1 15
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IN WITNESS WHEREOF, Grantor and the Grantee have executed this Deed of
Conservation Easement as of the date first written above.
GRANTOR:
CVR Properties, LLC
Robert E. McCormick, Manager
STATE OF COLORADO )
ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this ~ day of
2009, by Robert E. McCormick, Manager of Robert McCormick, LLC
Witness my hand and official seal.
My commission expires: ~ ~ ~ y~
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Notary u lic
?~~`~~ S T EA~s2
2• pTAlpy •
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. PUBL~G .'00
~~~rE OF C0~'~~P
MY COMMISSI~ EXPIRES
~TpgER 9, 2011
McCormick-Sawmill Parcel 1 16
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GRANTEE:
Patti Kay-Clapper
Title: Chair of the Board of County Commissioners of Pitlcin County, Colorado
STATE OF COLORADO )
)ss.
COUNTY OF PITKIN )
The foregoing document was acknowledged before me on 1 ~., a?gOg , by
Patti Kay-Clapper, Chair of the BOARD OF COUNTY COMMISSIONERS O PITKIN
COUNTY, Colorado, a body corporate and politic.
Witness my hand and official seal.
My commission expires: ~ - ~ _ Z ~ D
ary Public
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McCormick-Sawmill Parcel I ] "]
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EXHIBIT A
Legal Description
2b108 Ct7MYSFfNA71G~1 ELSE3tFNT
A tract of land, os described in Book 737 at Page 192 of fhe Pitkin County Records, situated in
Ehe NE1/45W1/4 and in fhe SE1/4 of Section 20 and in the NE1/4 of Section 29 oJl in Township
10 South, Range 88 West of the 6th Principal Meridian, Pitkin Cavnty, Colorado. and being mare
port;cu/arty descr;tred os follons~
Beginning at a paint an the Easterly rfghf-of-way line of a 30 foot wide access easement as built
and in place whence a stone found in place for the Witness Comer to the Southwest Comer of said
Sectfan, (also being fhe Wifiess Corner to the NorfhMest Corner of said Section 29) bears
5.53'1608°W. 3577.63 fast; thence O/DRg said £asfarfy right-of-way fine on the following two (2)
courses_ N.29'T9'10~ 397.45 feet: thence 135 76 feet along the arc of a 72533 foot radius curve
fo the right, the cord of which bears N.34'43'15 E 136.55 feet: (hence leaving said Easterly
right-of-MVy h"ne on a course bearing 5.30'0003 E. far 2Z2.6D feet; thexe South 595.50 feef,•
thence 5.62"03'09°E. 968.65 feet; thence South 394D.34 fast to v point on the Easf-West centerline
of said Sec{ions 29; (hence 5 89'43'S8'W. 304.24 feet along said East-West centerfne: thence
North 3987.80 feet; thence N.65"10'01 W. 887.76 feet; (hence N.11'0928~: 105.37 feet to o point
in the center of a 30 foot wide road right-of-way as bv~1t and in place {said road known os
SoNmiU Hill Road): thence along the centerline of said rood the following four (4} courses,' 56.59
feet long the arc of o 72.43 foot radius curve to the let{, the chord of which bears N.50' 14'4.5 W.
55.16 feet: thence 81.64 feet along the arc of a 74.06 fact radius curve fo the right, the chord
of which bears N.4 J'02'46'W. 77.57 feet; thence N.09'27 46"W. 63.76 feed {hence 78.69 feet along
the arc of a 58.66 foot radius curve to the right, the chord of which bears N.23'21 58 E 74.45
feet; .thence leovirg said rood center line on o course bearing N.64'24 55'W. for 83.713 feet to the
point of beginning, containing 35.04 acres more or less.
T06ETNER W177-I
A parcel of land located within S£1/4 of Section 20, Township 10 5oufh, f~onge 88 West of the 6th
P, N., having a dascripf;on based upon a bearing a/ N.OD737'23 E from the Sact~n Camar common
fo 5ecfiorrs 19, 2D 79 and 30 (monvmented by a 3-1/4' a/uminvm cop B.L.M.) to fhe Section
Corner common fo Sections 17, 18, 19 and 20 (monumenfed by o 3-1/4' brass cop U.S.C.L.D.),
with all other bearings relo{ive thereto and being mom porticu/arfy described os follows:
Beginning at a point vn the southwesterly right of way line of c thirty (30) (vat access easement
from whence the 1/4 Comer common fo SCCtIOns ZO and 29 bears S.OT15 Z3'1M1'. 2047.88 feet;
thence along said right of way line along the arc of o non-tangent curve to the left 88.22 feet,
sold curve hav;ng a radius of 17D.33 feat and a chord bearing and distance of N_44'D9 29 E 87.24
lest; thence leart'ng said right of way me 564'D5~34 E. 84.15 feet: (hence along the arc of a
non-tangent curve to the right 78_ti9 feet, said curve having o rod%us of 68.66 feet and a chord
bearing and distance of 523'21 58'1Y. 74.45 feet,- (hence S.D977'46 E 63.76 fe_d: thence along the
arc of o tangent curve to the left 2.01 fast, said curve having a radius of 73.80 feet and o chard
bearing and distance of 510'14'40"E. 201 feet: thence N.4T38'25"W. 159.39 feel to the Point of
Beginning. said parcel contains 0.232 acres, more or less.
EXGEPTINIi THF~£FROM
A parcel of land located within the SE1/4 Section 2q Township 10 5oufh, Range 88 West of the
6th P.M., having a descripfibn based upon a bearing of N.DO'07'23 E from the Section Corner
common fo Sections 19, 20, 29 and 30 (monumenfed by a 3-1/4' aluminum cap B.L.N.) to the
Seetebn Comer common to Sections 1T, 1S, 19 and 20 (monumented by o 3-1/4' brass cap
U.S.G. L.O.}, with a/1 other bearings relative therela and being mare particularly described as follows'
Beginning of a paint from whence the 1/4 Corner common fa Sections 2D and 29 bears
S. 14'.33:34'W. 178627 feet; thence N.11'0928'E 105.37 feet; thence slang the arc v( o
non-tangent curve tv the left 56.59 testa said curve hvvng o radius of 7243 feet and o chord
bearing and distance of N.50'14 45'IY. 55.16 feet; thence along the arc of tangent curve to right
79.53 feet said curve having a radius of 74.06 feet and a chard bearing and distance of
N.41'43301N. 75.85 feet; thence 5.4T38:75 E Z67.TZ feet; thence S. 11'0978'W. 67.94 feet; thence
N.65'1 D'01 °W. 123.50 feet to the Paint of Beginning, said parts/ contains D.269 acres, more or less.
~~
EXHIBIT B
Map of Property
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or sfc aN 29 _ a,Nnr,. PREPARED FOR CRV PROPER7
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crs o9sfRVAnoN ~ ~ NITHIN SECTIONS 20 & 29, T.IOS.. R.88N
SCAff :^^ ~.~. z~N~T fff' JJ((~~rafrsaiunal donD $urorging 3nc ~~ a • DELTA COUNTY COLD
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1
EXHIBIT "C"
1. Taxes for the year 2009 not yet due or payable.
2. Right of the proprietor of a vein or lode to extract and remove his ore therefrom, should the
same be found to penetrate or intersect the premises hereby granted and right of way for
ditches or canals constructed by the authority of the United States as reserved in United
States-Patent recorded September 22, 1903 in Book 55 at Page 122.
3. Right of the proprietor of a vein or lode to extract and remove his ore therefrom, should the
same be found to penetrate or intersect the premises hereby granted and right of way for
ditches or canals constructed by the authority of the United States as reserved in United
States Patent recorded August 25, 1898 in Book 55 at Page 85.
4. An undivided one-half (1/2) of all oil, gas and other minerals in the subject lands, as set forth in
instrument recorded June 7, 1957 in Book 181 at Page 434, and any and all assignments
thereof.
5. Easement 30 feet in width as constructed and in place as evidenced in Quit Claim Deed
recorded November 10, 1975 in Book 305 at Page 238 and Special Warranty Deed recorded
December 30, 1993 in Book 737 at Page 192 and in Special Warranty Deed recorded March
3, 1995 in Book 775 at Page 364.
6. Terms, conditions, provisions, obligations and easements as set forth in Quit Claim Deed
recorded March 3, 1995 in Book 775 at Page 358 (easement for ingress and egress to the
property)..
7. Easement and right of way for construction, operation and maintenance of water line granted
to Redstone Water and Sanitation District as set forth in Quit Claim Deed recorded January
31, 1995 in Book 772 at Page 920 and Correction Quit Claim Deed recorded February 2, 1995
in Book 773 at Page 173 and Quit Claim Deed recorded June 15, 1995 in Book 783 at Page
564.
8. Easements, rights of way and all matters as disclosed on Plat of CRV Properties LLC 1041
Hazard review Site Plan recorded April 13, 2006 in Plat Book 78 at Page 67.
9. Easements, rights of way and all matters as disclosed on Plat of Boundary Line Adjustment
recorded April 28, 2006 in Plat Book 78 at Page 95.
10. Terms, conditions, provisions, obligations and all matters as set forth in Resolution of the
Pitkin County Community Development recorded April 7, 2009 as Reception No. 557840 as
Resolution No. 23 Series of 2009.
11. Encroachments for Sawmill Hill Road (30 foot wide access easement) as disclosed by Survey
of Wilmore and Company dated February 10, 2009 as Job No. J09025.
12. Easements, rights of way and all matters as disclosed on Subdivision Exemption for Lot Line
Adjustment recorded April 17, 2009 in Plat Book 90 at Page 87.
y~
TRAIL AND ACCESSAND ADMINISTRATIVE ACCESS EASEMENT
THIS PUBLIC TRAIL AND ACCESSAND ACCESS EASEMENT (the "Trail
and Access Easement"), made and entered into this 15~''day of o~`~ , 2009, by and
between Robert E. McCormick and Deborah K. McCormick ("Grantor"), to and for the
benefit of Board of County Commissioners of Pitkin County, a local body politic, 530
East Main St., Aspen, CO 81611 (collectively referred to as "Parties"),
RECITALS'
1. Grantor is the record owner of certain real property located in
Pitkin County, known as the Gatehouse Parcel (the "Property"), that lies adjacent
to lands placed under conservation easement to Grantee and other Lands owned in
fee by Grantee on what is commonly known as Sawmill Hill above the
community of Redstone, and
2. Grantor desires by this instrument to establish and to grant to
Grantee a perpetual Trail and Access Easement over the property of Grantor
which would follow the Sawmill Hill Road which traverses lands of the Grantor,
and
3. Grantee desires by this instrument (a) to accept said Trail and 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 Trail and Access Easement. Grantor hereby grants,
transfers and conveys unto Grantee and its successors and assigns, for the use
and benefit of the general public anon-exclusive perpetual Trail and Access
Easement along the existing Sawmill Hill Road where it occurs on the southern
boundary of the Property, as further depicted on Exhibit A. Use of the Trail and
Access easement shall be exclusively for non-motorized access by ice climbers
between November 15 and April 15, and for general access by employees of
Pitkin County for management of lands on Sawmill Hill.
~tECEPTlC3N#: 558155, 04!2112009 at
03:45;44 PM,
t OF 6, R $0.00 Doc Code EASEMENT
,lanice FC. ~los Caudal!, Pitkin County, CO
McCormick Parcel 1Trai1 and Access Easement 1
~v
2. Trail and Access Use Restrictions.
(a) General Public use of the Trail and Access Easement shall be
exclusively non motorized for ice climbers to access the a feature commonly
known as the Redstone Pillar which is located on lands owned outright by
Grantee, between November 15 and April 15. 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.
(b) Employees of Pitkin County may utilize the Trail and Access
Easement in official county vehicles for maintenance and supervision of County
owned lands on Sawmill Hill.
(c) The Trail and Access 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 and Access Easement shall control wherever they are
more restrictive than the provisions of said Title XII. .
3. Grantor's immunity and Grantee's Obligation to insure. The parties
expressly acknowledge that the Trail and Access Easement is granted for a
"recreational purpose" under C.R.S. Section 33-41-101, et seg., 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 sec. By granting the Trail and Access Easement,
Grantor shall have no obligation to repair, clear or otherwise maintain the area
within the Trail and 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 Trail and Access Easement for
public non-motorized travel or otherwise, or due to the condition of the Public
Trail and Access Area.
Grantee further agrees to add Grantor (and its successors and assigns in
the ownership of the underlying real property traversed by the Trail and 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 Trail and Access 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.
McCormick Parcel 1Trai1 and Access Easement 2
5~
4. Attorneys' Fees. In the event the interpretation or enforcement of
this Trail and 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 Trail and 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.
5. 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 and 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 Trail and
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 Trail and Access Easement.
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals as of the day and year first above written.
GRANTOR:
C
~.~,,.~- ~- ti's., .
By:_
Robert E. McCormick
STATE OF COLORADO )
ss.
COUNTY OF~'I'C-~~ 1c~ )
The foregoing instrument was acknowledged before me this 1~ day of
'Z , 2009, by Robert E. McCormick.
Witness my hand and official seal.
My commission expires:~(~~~j
o.
Not ubl c
~~\F ~,R S T~cA/
• cP
~~TARy
4•, jOVBLSG
9~•..••,.••QOO
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MY COMMfSSfO(V EXPIRES
OCtOgER 9.2011
McCormick Parcel 1Trai1 and Access Easement 3
~~~
Deborah K. McCormick
STATE OF COLORADO )
ss.
COUNTY OF~~C.J-~ 1t. )
The foregoing instrument was acknowledged before me this ~ ~J day of
-~ ~'. ~ , 2009, by Deborah K. McCormick.
Witness my hand and official seal.
My commission expires: ~~ ~ ~,~~(~ ~ ~,%~ ~'
Notary
GRANTEE:
Pitkin County, Colorado
By:
Patti Kay-Clapper, Chair
ATTEST:
(COUNTY OF PITKIN )
~~R STF~
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lic ~,'. jOUBL~G •~p
~,QlFOF CO~O~QO
MY COMMISSION EXPIRES
OCTOBER 9, 2011
The foregoing instrument was acknowledged before me this day of
2009, by Patti Kay-Clapper, Chair 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
McCormick Parcel 1Trail and Access Easement 4
~3
By:
Deborah K. McCormick
STATE OF COLORADO )
ss.
COUNTY OF PITKIN )
The foregoing instrument was nowledged before me this day of
2009, by Debo K. McCormick.
Witness my hand official seal.
My Comm' ion expires:
GRANTEE:
Notary Public
Pitkin County, Colorado
By: ~~~ ~
Patti Kay-Cl pper, Chair
ATTESIT:
l .~,
(COi~NTY OF PITKIN ~~ )
The foregoing instrument was acknowledged before me this ~ day of
/ G , 2009, by Patti Kay-Clapper, Chair of the Board of County
Commis rs of Pitki Co ty, Colorado, and attested to
by / :.~1i1~~s ~~~i1~LD/~--
Witness my hand and official seal.
My commission expires: ~~ ~~~ ^ 02 ~~
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DEED OF CONSERVATION EASEMENT IN GROSS
SAWMILL HILL PARCEL 1
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THIS D ED OF CONSERV IO EASEMENT ("Easement Deed") is granted this
~5~~` day of ~„_ , 2009, b roperties, LLC, 117 Redstone Blvd., Redstone, CO -~
81623 ("Grantor"), to and for the benefit of Board of County Commissioners of Pitkin County, a
body corporate and politic, 530 East Main St., Aspen, CO 81611 (the "Grantee")(collectively,
the "Parties").
The following exhibits are attached hereto:
Exhibit A Description of Property
Exhibit B Map of Property
Exhibit C Title Exceptions
RECITALS
WHEREAS, Grantor is the sole owner in fee simple of certain real property in Pitkin
County, State of Colorado, more particularly described in Exhibit A (the "Property"). The
Property comprises approximately 35.003 acres of land; and
WHEREAS, the Properly possesses outstanding natural, scenic, open space! wildlife,
historic, and recreational values (collectively, "Conservation Values") of importance to the
Grantee, the people of Pitkin County, and the people of the State of Colorado that are worthy of
preservation; and
WHEREAS, the Property is adjacent the West Elk Historic and Scenic Byway and its
protection secures the view plane between the byway and the historic Redstone Castle; and
WHEREAS the Property lies between the historic Redstone Inn and historic Redstone
Castle and constitutes a scenic buffer between these which is important to the cultural heritage of
early settlement in the mountain west; and
WHEREAS, the specific Conservation Values of the Property will be documented in an
inventory of relevant features of ,the Property, ("Baseline Documentation Report") to be
completed by July 1, 2009, and may be supplemented with reports, maps, photographs, and other
documentation prepared the time the easement herein was granted and that are on file with the
Grantee, that the Parties agree to in good faith verify that this Baseline Documentation Report
will accurately represent the Property at the time of this grant and that is intended to serve as an
objective information baseline for monitoring compliance with the terms of this grant.
WHEREAS, Grantor intends that the Conservation Values of the Property be preserved
and maintained by the continuation of land use patterns, including, without limitation, those
relating to fishery and wildlife habitat management, protection of historic resources, and public
access across the Property for ice climbers accessing the Redstone Pillar ice climb located on
Pitkin County owned lands east of the Property; and
RECEPTION#: 5662?1, 01/1912010 at
10:29:58 AM,
1 OF 20, R $0.00 Doc Code DEED
CONSERV
Janice K. Vas Caudill, Pitkin County, CO
RECEPTION#: 558155, 04/2112009 at
03:46:43 PM,
1 U~ 2i1, R $0.00 Doc Code DEED
CONSERV
Janice K. Vos Caudill, Pitkin County, CO 1~
WHEREAS, Grantor intends, as owner of the Property, to convey to the Grantee the right
to preserve and protect the Conservation Values of the Property in perpetuity; and
WHEREAS, the Grantee agrees by accepting this grant to honor the intentions of Grantor
stated herein and to preserve and protect in perpetuity the Conservation Values of the Property
for the benefit of this generation and the generations to come; and
WHEREAS, the Grantee is a government organization described in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended (the "Code") and is apublicly-supported
organization as described in Section 170(b)(1)(A) of the Code whose purpose includes the
preservation and protection of the natural, scenic, unique high quality wetlands habitat and
riparian habitat of the Crystal Valley, including the area in which the Property is located, by
assisting landowners who wish to protect their land in perpetuity, and area "qualified
organization" eligible to receive conservation easements within the meaning of Section 170(h)(3)
of the Code; and
WHEREAS, the 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 in a natural, scenic
or open condition, for wildlife habitat, or for agricultural and other uses or conditions consistent
with the protection of open land in Colorado; and
WHEREAS the property encumbered by this conservation easement is traversed by a
private road known as Sawmill Hill Road Grantee is entitled to utilize the road for maintenance
purposes on its adjacent lands and also ice climbers are permitted access across the Property
between November 15 and April 15 for the purposes of accessing the Redstone Pillar.
NOW, THEREFORE, in consideration of the matters above, the mutual covenants,
terms, conditions and restrictions contained herein, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Grant. Grantor hereby voluntarily and irrevocably grants and conveys to the
Grantee a perpetual Conservation Easement in Gross (the "Easement"), pursuant to C.R.S. §38-
30.5-101 et seq., consisting of the rights and restrictions enumerated herein, over and across the
Property described in Exhibit A attached hereto, to have and to hold said Easement unto the
Grantee and their successors and assigns forever. The Easement shall constitute a binding
servitude upon the Property and shall be subject to prior reservations, easements, encumbrances
and exceptions of record, except as otherwise set forth herein.
2. Purposes. The purpose of this Easement is to preserve and protect the
Conservation Values of the Property in perpetuity. This purpose is in accordance with § 170(h)
of the Internal Revenue Code as amended, and the Treasury Regulations adopted pursuant
thereto. To achieve this Purpose, Grantor intends to convey this Deed of Conservation Easement
to the Grantee to ensure that the Conservation Values of the Property will be preserved and
protected forever. Subject to the purpose of this Easement, Grantor and the Grantee intend to
permit only uses of the Property that do not substantially diminish or impair the Property's
Conservation Values and to prevent any use of the Property that will substantially impair or
interfere with protecting the Property's Conservation Values. It is the intent of the Grantor to
McCormick-Sawmill Pazcel 1 2
Conservation Easement
3~
preserve the Property in its natural, scenic, and open space condition to preserve the open space
character, wildlife habitat, and scenic qualities of the Property. Notwithstanding the foregoing,
nothing in this Easement is intended to compel a specific use of the Property, such as agriculture,
other than the preservation and protection of the Property's Conservation Values.
3. Baseline Documentation. The parties acknowledge that a written report will be
prepared, reviewed, and approved by both parties (the "Baseline Documentation Report") by
July 1, 2009. A copy of the Baseline Documentation Report will be on file with both parties and'
by this reference made a part hereof. The parties acknowledge that the Baseline Documentation
Report is intended to establish the condition of the Property subject to the Easement as of the
date written above. The parties further agree that, in the event a controversy arises with respect
to the condition of the Property as of the conveyance date of the Easement, or compliance with
or violation of any term or provision of this Easement, the parties may use the Baseline
Documentation Report and any other relevant or material documents, surveys, reports, and other
information to assist in resolving a controversy.
4. Rights of Grantee. To accomplish the purposes of this Easement, Grantor
conveys the following rights to the Grantee:
4.1 The right to preserve and protect the Conservation Values of the Property in
perpetuity; and
4.2 The right to enter upon the Property at reasonable times, to inspect the Property
thoroughly, to monitor Grantor's compliance with and otherwise enforce the terms of this
Easement Deed; provided that such entry shall be upon thirty-six hour prior notice to Grantor, and
except that no such notice shall be required in the event the Grantee reasonably believes that
immediate entry upon the Property is essential to prevent or mitigate a violation of this Easement
Deed. The Grantee shall not unreasonably interfere with Grantor's use and quiet enjoyment of
the Property; and
4.3 The right to prevent any activity on or use of the Property that is inconsistent with
the purposes of this Easement, or that may have an adverse impact on the Conservation Values of
the Property, and to require the restoration of such areas or features of the Property that are
damaged by any inconsistent activity or use; and
4.4 Any other rights that the Parties may approve consistent with the purposes of this
Easement and the Conservation Values, such as habitat enhancement projects, recreational
enhancements such as fishing trails, or scientific studies.
4.5 The Grantee shall have the right to utilize the Sawmill Hill Road for land
management activities on adjacent lands owned outright by Grantee.
4.6 Public access by ice climbers seeking to access the Redstone Pillar ice climb is
provided across the property during the period November 15 through April 15,. Other than
Grantor's and Grantor's invitees' dogs, this limited public access shall permit no dogs on Castle
Road.
McCormick-Sawmill Parcel 1 3
Conservation Easement
.3~
4.7 The public access restrictions herein shall remain in perpetuity, unless amended
by subsequent agreement of Grantor and Grantee.
5. Prohibited Uses. Any activity on or use of the Property inconsistent with the
purposes of this Easement is prohibited. Without limiting the generality of the foregoing, the
following activities and uses are expressly prohibited:
5.1 The change, disturbance, alteration, or impairment of the relatively natural habitat
for plants, wildlife, or similar ecosystems within and upon the Property, except as provided
herein.
5.2 The construction, placement, reconstruction of any buildings, structures, mobile
homes, or billboards, except as otherwise expressly provided herein.
5.3 The conveyance of new easements, rights-of--ways, the paving or grading of new
roadways or the construction of any new roadways without the prior written consent of the
Grantee, which consent shall be in the Grantee's sole discretion.
5.4 The removal, destruction, or cutting of native vegetation, except as necessary for
fire or disease prevention or control of pine beetles, except the cutting of dead, down or
diseaesaed trees or the thinning of trees for forest health under the supervision of the Colorado
State Forest Service and consistent with other applicable laws.
5.5 The introduction of non-native plant or animal species.
5.6 The grazing of livestock except as part of a noxious weed control effort.
5.7 The use of pesticides or herbicides other than for the control of noxious weeds
and/or pests in a manner consistent with sound environmental conservation practices and the
control of bark beetles consistent with other applicable laws.
5.8 The exploration, mining, or extraction of minerals, oil, gas, or other
hydrocarbons, soils, sands, gravel, rock, or other materials on or below the surface of the
Property. Grantor, its heirs, successors, transferees or assigns shall not transfer, lease or
otherwise separate the soil, sand, gravel, rock, oil, natural gas, fuel or any other mineral
substance from the Property.
5.9 Any division, subdivision, or de facto subdivision of the Property, provided
however that boundary changes with adjacent parcels are permitted with the Grantee's written
consent provided that the affected land remains subject to the restrictions contained herein, the
new landowner would agree in writing to abide by the terms of this Deed, and provided that such
boundary changes will not result in additional development on adjacent parcels.
5.10 The use of any motorized vehicles, with the exception of the use of motorized
vehicles incidental and necessary to the use of the Property for land management activities and
for uses and practices by Grantor consistent with this Easement Deed as described in Section 6,
below.
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5.11 The establishment or maintenance of any commercial feed lot, which shall be
defined for purposes of this Easement Deed as a permanently constructed, confined area or
facility within which the land is not grazed or cropped annually, for purposes of engaging in the
business of the reception and extended feeding and finishing of large numbers of livestock for
hire.
5.12 The accumulation, dumping or other disposal of trash, ashes, garbage, or other
offensive or unsightly refuse on the Property.
5.13 The degradation, pollution, or drainage of any surface or sub-surface water.
5.14 Any use that would increase, or substantially add to the risk of soil erosion.
5.15 Any change in the topography of the Property through the placement therein of
soil, land fill, dredging spoils, or other material, except as incidental and necessary to the
maintenance, repair and replacement of existing roads, which uses shall require no notice to
Grantee except as may otherwise be required under applicable local, state or federal laws, rules
or regulations, and provided that disturbed areas will be revegetated consistent with prudent land
management practices to prevent erosion and the spread of noxious weeds.
5.16 The erection, construction, installation, relocation or use of a communication
facility, a telecommunication facility, a network element or any other telecommunication
facilities, equipment or material that may be used for telecommunications or to provide such
services; except such facilities existing as of the date of this Easement, or personal or low-impact
telecommunications services that do not substantially diminish or impair the Conservation
Values.
5.17 Industrial uses are prohibited on the Property.
5.18 Commercial signs, billboards, awnings, or advertisements shall not be displayed
or placed on the Property. No signs shall significantly diminish or impair the Conservation
Values of the Property.
6. Consistent Uses of the Property. The following uses and practices are
consistent with this Easement Deed. Certain of these consistent uses and practices as may be
expressly identified as being subject to specified conditions, to the notice provision as described
in Paragraph 10, and/or to the requirement of and procedures for prior approval by the Grantee as
described in Paragraph 9:
6.1 Passive recreational uses by Grantor, its guests and invitees, including hiking,
hunting, and the like, as well as camping provided that no permanent facilities are allowed and
no more than 6 persons at one time.
6.2 Such other natural surface trails or paths as may be needed to provide recreational
access to the Redstone Pillar, subject to mutual consent and approval of Grantor and Grantee.
6.3 Land management activities that further the preservation, forest health and/or
restoration of the natural condition of the property.
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6.4 Research solely by Grantor's employees and/or subcontractors that focuses on the
natural characteristics or wildlife found on the property.
6.5 Commercial uses that are conducted in a manner that is consistent with § 170(h)
of the United States Internal Revenue Code and the Treasury Regulations adopted pursuant
thereto, are consistent with the purposes of the Easement, and do not substantially diminish or
impair the Property's Conservation Values. It is expressly acknowledged and agreed that those
uses identified in Section 6.1, above, are permitted commercial uses, provided however, that
nothing contained herein is intended to be a land use permit granted by Pitkin County and all
uses contained herein are subject to applicable laws and regulations.
6.6 Trees may be cut, and/or pesticides used, to control insects and disease, to control
invasive non-native species, and to prevent personal injury and property damage and to maintain
forest health. Down, dead or dying trees may be cut for firewood.
6.7 Fences for purposes of reasonable and customary management of wildlife, or for
separation of trails from adjacent private land, provided said fencing does not unduly restrict or
exclude wildlife use of the Property.
6.8 Grantor may continue to use, operate, maintain and repair and replace all existing
roads, utility lines, currently on the Property, and provided that stream bank stabilization to protect
the existing Castle Road is explicit permitted pursuant to this paragraph.
6.9 Castle Road, which is depicted as a 30' access easement on Exhibit B and lies
adjacent to the northwest boundary of this Easement, may be expanded onto the Property, and may
be repaired, replaced, improved and widened as need, only with mutual consent of both Grantor and
Grantee, and with the appropriate land use approval from the Pitkin County Board of County
Commissioners.
7. Reserved Rights. Grantor reserves to itself and to its personal representatives,
heirs, successors, and assigns, all rights accruing from their ownership of the Property, including
the right to engage in all uses of the Property that are consistent with the purposes of this
Easement Deed and that do not have an adverse impact on the Conservation Values. Grantor
shall notify the Grantee in writing, as described in Paragraph 9, before exercising reserved rights
that might have an adverse impact on the Conservation Values.
8. Representations and Warranties. Grantor (only and not his assigns or
successors in interest) represents and warrants that, after reasonable investigation and to the best
of its knowledge:
8.1 No substance defined, listed, or otherwise classified pursuant to any federal, state,
or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise
contaminating to the air, water, or soil, or in any way harmful or threatening to human health or
the environment exists or has been released, generated, treated, stored, used, disposed of,
deposited, abandoned, or transported in, on, from, or across the Property.
8.2 There are not now any underground storage tanks located on the Property,
whether presently in service or closed, abandoned, or decommissioned, and no underground
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2.S
storage tanks have been removed from the Property in a manner not in compliance with
applicable federal, state, and local laws, regulations, and requirements.
8.3 There is no pending litigation in any way affecting, involving, or relating to the
Property.
8.4 No civil or criminal proceedings or investigations have been instigated at any time
or are now pending, and no notices, claims, demands, or orders have been received, arising out
of any violation or alleged violation of, or failure to comply with, any federal, state, or local law,
regulation, or requirement applicable to the Property or its use, nor do there exist any facts or
circumstances that Grantor might reasonably expect to form the basis for any such proceedings,
investigations, notices, claims, demands, or orders.
8.5 Grantor (only and not his successor or assigns) warrants that Grantor has good
and sufficient title to the Property, subject to the exceptions described on the attached Exhibit C,
that Grantor has good right, full power and lawful authority to grant and convey this Easement,
and hereby promises to defend the same against all claims from persons claiming by, through, or
under Grantor. Grantor further warrants that there are no mortgages or liens on the Property.
9. Notice of Intention to Undertake Certain Permitted Actions. The purpose of
requiring Grantor to notify the Grantee before undertaking certain permitted activities is to afford
the Grantee an opportunity to ensure that the activities in question are designed and carried out in
a manner consistent with the purposes of this Easement Deed. Whenever notice is expressly
required for a permitted use herein, Grantor shall notify the Grantee in writing not less than 45
days prior to the date Grantor intends to undertake the activity in question, unless a different time
period for the giving of notice is provided as to the activity in question. The notice shall describe
the nature, scope, design, location, timetable, and any other material aspect of the proposed
activity in sufficient detail to permit the Grantee to make an informed judgment as to its
consistency with the purposes of this Easement and the Conservation Values.
10. The Grantee's Approval. Whenever this Easement Deed requires that Grantor
obtain the Grantees' approval of any activity on or use of the Property, such approval shall not be
unreasonably withheld or delayed. Where the Grantee's approval is required, the Grantee shall
grant or withhold their approval in writing within 30 days of receipt of Grantor's written request
therefor. The Grantee's approval may be withheld if the Grantee determines that the action as
proposed would be inconsistent with the Conservation Values or the purposes or terms of this
Easement Deed; the reason(s) for such a determination shall be set forth with specificity by the
Grantee in a written notice to Grantor. Where a modification of the proposed use or activity by
Grantor would render the same consistent with the purposes of this Easement Deed and the
Conservation Values, the Grantee shall specify, in such written notice to Grantor, such required
modifications. If the Grantor disagrees with the Grantee's decision, the parties shall attempt to
resolve the dispute in mediation, pursuant to Subparagraph 11.1 below.
11. Grantee's Remedies: Enforcement. The Grantee shall have the right to prevent
and correct or require correction of violations of the terms and purposes of this Easement Deed.
The Grantee may enter the Property for the purpose of inspecting for violations in accordance
with Subparagraph 4.2 above. If the Grantee finds what it believes is a violation, or a threat of ~
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violation, the Grantee shall notify Grantor in writing of the nature of the alleged violation. Upon
receipt of this written notice, Grantor shall either: (1) restore the Property as best possible to its
condition prior to the violation in accordance with a plan approved by the Grantee; or (2) provide
a written explanation to Grantee of the reason why the alleged violation should be permitted. If
the Grantee is not satisfied with Grantor's written explanation, all Parties agree to meet as soon as
possible to resolve this difference. If a resolution of this difference cannot be achieved at the
meeting, all Parties agree to meet with a mutually acceptable mediator to attempt to resolve the
dispute pursuant to Subparagraph 13.1 below.
Should mediation fail to resolve the dispute within sixty (60) days of Grantee written
notice to Grantor of the alleged violation, or by such other date as the Parties may mutually
agree, the Parties may take appropriate legal action pursuant to the Paragraphs below, including
seeking injunctive relief by ex pane means if necessary, to stop an alleged violation. The
exclusive venue for any such suit is in the County in which the Property is located. The failure
of Grantee to discover a violation or to take action shall not waive any of the Grantee's rights,
claims or interests in pursuing any such action at a later date. Nothing in this conservation
easement serves to waive any immunity at law, including immunity granted under the Colorado
Governmental Immunities Act, Section 24-10-101 et seq., C.R.S., or any other rights,
protections, immunities, defenses or limitations on liability provided by law, and subject to any
applicable provisions of the Colorado Constitution and applicable laws.
11.1 Mediation. If a dispute arises between the Parties concerning the consistency of any
proposed use or activity with the purpose of this Easement Deed, and Grantor agrees not to
proceed with the use or activity pending resolution of the dispute, either party may refer the
dispute to mediation by request made in writing upon the other. Within ten (10) days of the
receipt of such request, the Parties shall select a single trained and impartial mediator with
experience in Conservation Easement Deeds and other land preservation tools. If the Parties are
unable to agree on the selection of a single mediator, then the Parties shall each select a trained
and impartial mediator with experience in Conservation Easement Deeds and other land
preservation tools, and those two mediators shall select a similarly skilled mediator who shall
alone mediate the dispute. Mediation shall then proceed in accordance with the following
guidelines:
A. Purpose. The purpose of the mediation is to: (1) promote discussion
between the Parties; (2) assist the Parties to develop and exchange
pertinent information concerning the issues in dispute; and (3) assist the
Parties to develop proposals that will enable them to arrive at a mutually
acceptable resolution of the controversy. The mediation is not intended to
result in any express or de facto modification or amendment of the terms,
conditions, or restrictions of this Easement Deed.
B. Participation. The mediator may meet with the Parties and their counsel
jointly or ex pane. The Parties agree that they will participate in the
mediation process in good faith and expeditiously, attending all sessions
scheduled by the mediator, except in cases when the Grantee believes that
Conservation Values are continuing to be harmed during the mediation
process in which case the Grantee can suspend its involvement in the
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~7
mediation to remedy this threat of ongoing violation. Representatives of
the Parties with settlement authority will attend mediation sessions as
required by the mediator.
C. Confidentiality. All information presented to the mediator shall be
deemed confidential and shall be disclosed by the mediator only with the
consent of the Parties or their respective counsel. The mediator shall not
be subject to subpoena by any party in any subsequent litigation. No
statements made or documents prepared for mediation sessions shall be
disclosed in any subsequent proceedings or construed as an admission of a
p~Y•
D. Time Period. Neither party shall be obligated to continue the mediation
process beyond a period of sixty (60) days from the date of receipt of the
initial request or if the mediator concludes that there is no reasonable
likelihood that continuing mediation will result in a mutually agreeable
resolution of the dispute. The Parties shall each bear 50% of the
mediator's fees.
11.2 Injunctive Relief. The Grantee may bring an action at law or in equity, ex pane
as necessary, in a court of competent jurisdiction, to enforce the terms of this Easement Deed and
to enjoin by temporary or permanent injunction a violation, including to require or cause the
restoration of the Property to the condition that existed prior to the violation. The exclusive
venue for such an action is the county in which the Property is located.
11.3 Damages. The Grantee shall be entitled to recover damages for violation of the
terms of this Easement Deed or injury to the Conservation Values, including, without limitation,
damages for the loss of scenic, aesthetic, or environmental values. The Grantee shall apply any
damages recovered to the cost of undertaking any restorative, remediative, corrective action on
the Property. Nothing in this conservation easement serves to waive any immunity at law,
including immunity granted under the Colorado Governmental Immunities Act, Section 24-10-
101 et seq., C.R.S., or any other rights, protections, immunities, defenses or limitations on
liability provided by law, and subject to any applicable provisions of the Colorado Constitution
and applicable laws.
11.4 Emer~ency Enforcement. If the Grantee reasonably believes an ongoing or
threatened imminent activity violates the Easement Deed, the Grantee may, in their sole
discretion, take immediate legal action as set forth in this Paragraph without prior notice to
Grantor, without waiting for the period provided for cure to expire, and without waiting for the
60 day mediation period to expire. The exclusive venue for any such suit is in the County in
which the Property is located.
11.5 Scope of Relief. The Grantee's rights under this Paragraph apply equally in the
event of either actual or threatened violations of the terms of this Easement Deed. Grantor agrees
that the Grantee's remedies at law for any violation of the terms of this Easement Deed are
inadequate and that the Grantee shall be entitled to the injunctive relief described in
Subparagraph 11.2, both prohibitive and mandatory, in addition to such other relief to which the
McCormick-Sawmill Parcel 1 ()
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~~
Grantee may be entitled, including specific performance of the terms of this Easement Deed,
without the necessity of proving either actual damages or the inadequacy of otherwise available
legal remedies. The Grantee's remedies described in this Paragraph shall be cumulative and shall
be in addition to all remedies now or hereafter existing at law or in equity. Nothing in this
conservation easement serves to waive any immunity at law, including immunity granted under
the Colorado Governmental Immunities Act. Section 24-10-101 et seq., C.R.S., or any other
rights, protections, immunities, defenses or limitations on liability provided by law, and subject
to any applicable provisions of the Colorado Constitution and applicable laws.
11.6 Costs of Enforcement. All parties shall bear their own costs and attorneys' fees
in any enforcement action.
11.7 The Grantee's Discretion. Enforcement of the terms of this Easement Deed shall
be at the sole discretion of the Grantee, and any forbearance by the Grantee to exercise their
rights under this Easement Deed in the event of any breach of any term of this Easement Deed by
Grantor shall not be deemed or construed to be a waiver by the Grantee of such term or any
subsequent breach of the same or any other term of this Easement Deed or of any of the
Grantee's rights under this Easement Deed. No delay or omission by the Grantee in the exercise
of any right or remedy upon any breach by Grantor shall impair such right or remedy or be
construed as a waiver.
11.8 Waiver of Certain Defenses. No action shall be commenced or maintained to
enforce the terms of any building restriction described in this Easement Deed, or to compel the
removal of any building or improvement, unless said action is commenced within four (4) years
from the date of the violation for which the action is sought to be brought or maintained. To the
extent that any defense available to Grantor pursuant to C.R.S. §38-41-119 is inconsistent with
the foregoing, Grantor waives that defense.
11.9 Acts Beyond Grantor's Control. Nothing contained in this Easement Deed shall
be construed to entitle the 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. Grantor is not responsible for acts of third parties that Grantor could not reasonably have
anticipated or prevented and who are out of Grantor's control.
12. Costs, Liabilities, Taxes and Environmental Compliance.
12.1 Hold Harmless. The Grantor agrees to use its best faith efforts to hold the
Grantee harmless from liability arising from or in any way connected with: (1) injury to or the
death of any person, or physical damage to any property, resulting from any act, omission,
condition, or other matter related to or occurring 'on or about the Property, regardless of cause,
unless due solely or in part to the negligence of the Grantee or any of its agents; (2) the presence
or release of hazardous or toxic substances on, under or about the Property, unless due solely or
in part to the negligence of the Grantee or any of its agents, subject to the current constraints or
limitations of Colo. Const. Art. XI, Section 1, as amended from time to time, which constraints
or limitations the County believes currently prohibit it from adopting a strict obligation to hold
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,~9
harmless the Grantee. Nothing contained herein waives or is intended to waive any protections
that may be applicable to the Grantor under the Governmental Immunity Act, Section 24-10-101
et seq., C.R.S., or any other rights, protections, immunities, defenses or limitations on liability
provided by law, and subject to any applicable provisions of the Colorado Constitution and
applicable laws.
Without limiting the foregoing, nothing in this Deed shall be construed as giving rise to
any right or ability in the Grantee, nor shall the Grantee have any right or ability, to exercise
physical or managerial control over the day-to-day operations of the Property, or otherwise to
become an operator with respect to the Property within the meaning of The Comprehensive
Envirorunental Response, Compensation and Liability Act of 1980, as amended.
12.2 Costs Le a~ 1 Requirements and Liabilities. Grantor will retain all responsibilities
and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep,
and maintenance of the Property, including weed control and eradication and the maintenance of
adequate liability insurance coverage, which names the Grantee as an additional insured.
Grantor remains solely responsible for obtaining any applicable governmental permits and
approvals for any construction or other activity or use permitted by this Easement, and all such
construction or other activity or use shall be undertaken in accordance with all applicable federal,
state, and local laws, regulations and requirements. Grantor shall keep the Property free of any
liens arising out of any work performed for, materials furnished to, or obligations incurred by
Grantor.
12.3 Taxes. Grantor shall pay before delinquency all taxes, assessments, fees, and
charges of whatever description levied on or assessed against the Property by competent
authority (collectively "Taxes"), including any Taxes imposed upon, or incurred as a result of,
this Easement, and shall furnish the Grantee with satisfactory evidence of payment upon request.
The Grantee is authorized, but in no event obligated, to make or advance any payment of Taxes,
upon ten (10) days prior written notice to Grantor, in accordance with any bill, statement, or
estimate procured from the appropriate authority, without 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 to the Grantee at the lesser of fifteen percent (15%) per
annum, or the maximum rate allowed by law.
12.4 Remediation. If, at any time, there occurs, or has occurred, a release in, on, or
about the Property of any substance now or hereafter defined, listed, or otherwise classified
pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic,
polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or
threatening to human health or the environment ("Release'), Grantor agrees to take all steps
necessary to assure its contairunent and remediation, including any cleanup that may be required,
unless the release was caused by the Grantee, in which case the Grantee shall be responsible
therefor.
12.5 Control. Nothing in this Grant shall be construed as giving rise, in the absence of
a judicial decree, to any right or ability in the Grantee to exercise physical or managerial control
over the day-to-day operations of the Property, or any of Grantor's activities on the Property, or
otherwise to become an operator with respect to the Property within the meaning of The
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Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended
("CERCLA"), and any Colorado state law counterpart.
13. Real Property Interest. This Easement constitutes a real property interest
immediately vested in the Grantee. The parties stipulate that this Easement has a fair market
value equal a proportion of the property value determined by dividing the value of the Property
encumbered by the Conservation Easement by the value of the Property unencumbered by the
Conservation Easement, based on the June 2, 2008 appraisal by Appraisal Associates of Colorado
For the purposes of this Easement, the ratio of the value of the Easement to the value of the
Property as unencumbered by the Easement shall be 69% and shall remain constant.
14. Extinguishment and Condemnation.
14.1 Extinguishment. In granting this Easement, Grantor has considered the possibility
that uses prohibited by the terms of this Easement Deed may become more economically
valuable than permitted uses and that neighboring properties may be used entirely for such
prohibited uses in the future. It is the intent of the Grantor and the Grantee that any such changes
shall not be deemed circumstances justifying the termination or extinguishment of this Easement
Deed. In addition, the inability of Grantor, or the Grantor's heirs, successors or assigns, to
conduct or implement any or all of the uses permitted under this Easement Deed, or the
unprofitability of doing so, shall not impair the validity of this Easement Deed or be considered
grounds for its termination or extinguishment.
If circumstances arise in the future that render the purposes of this Easement Deed
impossible to accomplish, this Easement Deed can only be terminated or extinguished, whether
in whole or in part, by judicial proceedings in a court of competent jurisdiction. The exclusive
venue for such a dispute is the county in which the Property is located. Each party shall promptly
notify the other in writing when it first learns of such circumstances. The amount of the proceeds
to which the Grantee shall be entitled, after the satisfaction of prior claims, from any sale,
exchange, or involuntary conversion of all or any portion of the Property subsequent to such
termination or extinguishment, shall be determined, unless otherwise provided by Colorado law
at the time, in accordance with this Paragraph 14. The Grantee shall use all such proceeds in a
manner consistent with the conservation purposes of this Easement Deed.
14.2 Condemnation. If all or any part of the Property is taken by exercise of the power
of eminent domain or acquired by purchase in lieu of condemnation, whether by public,
corporate, or other authority, so as to terminate this Easement, in whole or in part, Grantor and
the Grantee shall act jointly to recover the full value of the interests in the Property subject to the
taking or in-lieu purchase and all direct or incidental damages resulting therefrom. All expenses
reasonably incurred by Grantor and the Grantee in connection with the taking or in-lieu purchase
shall be paid out of the amount recovered. The Grantee shall be entitled to compensation in
accordance with applicable law from any sale, exchange, condemnation, or other involuntary or
voluntary conversion of all or any portion of the Property subsequent to such taking or in-lieu
purchase resulting in termination or extinguishment. The Grantee's compensation shall be an
amount equal to the Easement value percentage listed in Paragraph 13 above, multiplied by the
amount of the full proceeds from any sale, exchange, condemnation, or other involuntary or
McCormick-Sawmill Parcel 1 12
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y~
voluntary conversion of all or a portion of the Property. The Grantee shall use its proceeds, if
any, in a manner consistent with the conservation purposes of this Easement.
14.3 Application of Proceeds. The Grantee shall use any proceeds received under the
circumstances described in this Paragraph, if any, in a manner consistent with its conservation
purposes, which are exemplified by this grant.
15. Assignment. This Easement is transferable, but the Grantee may assign its rights
and obligations under this Easement only to an organization that (a) is a qualified organization at
the time of transfer under Section 170(h) of the Internal Revenue Code of 1986, as amended (or
any successor provision then applicable), and the applicable regulations promulgated thereunder,
(b) is authorized to acquire and hold conservation easements under Colorado law, (c) agrees to
assume the responsibility imposed on the Grantee by this Easement. The Grantee shall provide
the Grantor with a written request to assign the Easement at least forty-five (45) days prior to the
date of the assignment transaction. The Grantor may disapprove of the transfer for any reason,
including but not limited to, the holder's desire to sell its interest in the Property.
16. Subsequent transfers. Grantor shall incorporate the terms and conditions of this
Easement in any deed or other legal instrument by which it divests itself of any interest in all or a
portion of the Property, except conveyance of a leasehold interest that is no longer than one year
in duration. Grantor further agrees to give written notice to the Grantee of the transfer of any
interest at least forty-five (45) days prior to the date of such transfer. The failure of Grantor to
perform any act required by this paragraph shall not impair the validity of this Easement or limit
its enforceability in any way.
17. Estoppel Certificates. Upon request by Grantor, The Grantee shall provide a
document or estoppel certificate to certify Grantor's compliance, if the same is appropriate under
the circumstances surrounding the request.
18. Notices. Any notice, demand, request, consent, approval, or communication that
either party desires or is required to give to the other shall be in writing and either served
personally or sent by first class mail, postage prepaid, addressed as follows or to such other
address as either party from time to time shall designate by written notice to the other:
To Grantor: C.R.V. Properties LLC
c/o Robert McCormick
117 Redstone Blvd.
Redstone, Colorado 81623
To the Grantee:
Pitkin County Board of County Commissioners
530 East Main Street
Aspen, Colorado 81611
Phone: 970-920-5232
Fax: 970 920-5198
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19. Recordation. The Grantee shall record this instrument in timely fashion in the
official records of Pitkin County, Colorado, and may re-record it at any time as may be
required to preserve its rights in this Easement Deed.
20. Amendment. If the circumstances arise under which an amendment to or
modification of this instrument would be appropriate, Grantor and the Grantee are free to
jointly amend this instrument; provided that no amendment shall be allowed that will affect
the qualifications of this instrument under any applicable laws. Any amendment must be
consistent with the conservation purposes of this instrument and may not affect its perpetual
duration. Any amendment must be in writing, signed by all Parties, and recorded in the
records of the Clerk and Recorder of Pitkin County, Colorado.
21. General Provisions.
21.1 Exhibits. The following Exhibits are attached to and incorporated by reference
into this conservation Easement Deed. Exhibit A: Property Legal Description, Exhibit B: Map
of the Property, Exhibit C: List of Title Exceptions.
21.2 Definitions. The terms "Grantor" and "Grantee," wherever used herein, and any
pronouns used in place of those terms, shall be deemed to include, respectively, Grantor and its
heirs, personal representatives, executors, administrators, successors and assigns, and the
Grantee, their successors and assigns.
21.3 Controlling Law. The interpretation and performance of this Easement Deed shall
be governed by the laws of the State of Colorado.
21.4 Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Easement Deed shall be liberally construed in favor of the grant to effect
the purposes of the Easement and the policy and purpose of C.R.S. §38-30.5-101 et seq. If any
provision in this instrument is found to be ambiguous, an interpretation consistent with the
purposes of the Easement that would render the provision valid shall be favored over any
interpretation that would render it invalid. The common law rules of disfavoring restrictions on
the use of real property and construing restrictions in favor of the free and unrestricted use of real
property shall not apply to interpretations of this Easement Deed or to disputes between the
Parties concerning the meaning of particular provisions of this Easement Deed.
21.5 Severability. If any provision of this Easement Deed, or the application thereof to
any person or circumstance, is found to be invalid, the remainder of the provisions of this
Easement Deed, or the application of such provision to persons or circumstances other than those
as to which it is found to be invalid, as the case may be, shall be deemed severable and remain in
full force and effect.
21.6 Entire Agreement. This instrument sets forth the entire agreement between the
Parties with respect to the Easement and supersedes all prior discussions, negotiations,
understandings, or agreements relating to the Easement, all of which are merged herein.
21.7 No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of
Grantor's title in any respect.
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~3
21.8 Joint Obli ag tion. The obligations imposed by this Easement Deed upon Grantor
shall be joint and several (in the event that there is more than one Grantor).
21.9 Successors. The covenants, terms, conditions, and restrictions of this Easement
Deed shall be binding upon, and inure to the benefit of, the Parties hereto and their respective
personal representatives, heirs, successors, and assigns and shall continue as a servitude running
in perpetuity with the Property, unless otherwise specified herein.
21.10 Termination of Rights and Obli atg ions. 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.
21.11 Captions. The captions in this instrument have been inserted solely for
convenience of reference and are not a part of this instrument and shall have no effect upon
construction or interpretation.
21.12 No Third Party Beneficiaries. This Easement is entered into by and between
Grantor and the Grantee, and is solely for the benefit of Grantor, the Grantee, and their
respective successors and assigns for the purposes set forth herein, and does not create rights or
responsibilities in any third parties beyond Grantor, the Grantee, and their respective successors
and assigns.
21.13 Counterparts. The Parties may execute this instrument in two or more
counterparts, which shall, in the aggregate, be signed by all Parties; each counterpart shall be
deemed an original instrument as against any party who has signed it. In the event of any
disparity between the counterparts produced, the recorded counterpart shall be controlling.
21.14 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.
21.15 Development Rights. Except for the one (1) transferrable development right
issued by Grantee to Grantor in partial consideration for this Easement and prior to the execution
thereof, Grantor hereby grants to the Grantee all development rights except as otherwise
expressly reserved by Grantor herein, and the parties agree that such rights are hereby released,
terminated and extinguished, and may not be used on or transferred off of the Property to any
other property adjacent or otherwise or used for the purpose of calculating permissible lot yield
of the Property or any other property.
TO HAVE AND TO HOLD unto Grantee, their successors, and assigns forever.
McCormick-Sawmill Parcel 1 15
Conservation Easement
L -f
IN WITNESS WHEREOF, Grantor and the Grantee have executed this Deed of
Conservation Easement as of the date first written above.
GRANTOR:
~R Pr~enies, LLC
C
By:l ~-~
Robert E. McCormick, Manager
STATE OF COLORADO )
ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this ~ day of
! , 2009, by Robert E. McCormick, Manager of Robert McCormick, LLC
Witness my hand and official seal.
My commission expires: ~(}l ~l f p~~
Notary u lic
~~~~~ S T ~P/s'Ji
a. aTa y .~
~: ~ R
~~ OF C~'~
~ ~pMMISSION EXPI~S
p~TO~ p, X011
McCormick-Sawmill Parcel 1 1C
Conservation Easement
~~
GRANTEE:
By ~~~ -
Patti Kay-Clapper
Title: Chair of the Board of County Commissioners of Pitkin County, Colorado
STATE OF COLORADO )
)ss.
COUNTY OF PITKIN )
The foregoing document was acknowledged before me on 1 ~, o2A~q , by
Patti Kay-Clapper, Chair of the BOARD OF COUNTY COMMISSIONERS O PITKIN
COUNTY, Colorado, a body corporate and politic.
Witness my hand and official seal.
My commission expires: 1 - Z ~ D
ary Public '
~~° ~` ~
;' < yN0 a• ~~<
`~ ; O`c~~~CR. n
~~. ;
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McCormick-Sawmill Parcel I 1']
Conservation Easement
yC
EXHIBIT A
Legal Description
1~OB CoNSERyi171t7N- EtSEilE1111'
A tract of land, os descr~bsd in Book 737 at Poge 182 of the Pitkin County Retards, situated in
Ehe NE1/45W1/4 and in the SEi/4 of Section 20 and in the NE1/4 of Section 29 0ll in Township
10 South, Range 88 West of the bth Principal Mend~an, Pitkin County Colorado. and being mare
partr'cWarfy described as foilows~
Beginning at a paint do the Easterly right-of-way line of o 3D foot wide access easement as bm7t
and in place whence a stone found in place for the Witness Comer to the Southwest Comer of said
Sectfan, (also being the Witness Corner to the NorlhMest Comer of said Section 23) bears
S 53' 16 08°W. 3527.63 foal; thence o%ng said Easterly right-of-way lino on tho foifow~hg two (2)
courses- N.29'19"10~ 397.45 feet: fhence 136.76 feet along the arc of o 725.33 foot radius curve
to the right; the cord al whicfi bears N.34'43"15~: 136.55 feet; fhence leaving sold fasferty
right-of-nay lfne on a course bearing 5.30'DO'09 E for 222.6D feet; thence South 595.5D feet;
thence 5.62'03'09°E. 958.65 feet: fhence South 394 34 feet to v point on the East-West centerline
of said Sections 29: fhence S: 89'43 58'H: 304.24 feet along said East-West centerine: thence
North 3987.80 feet; thence N.fi5'f001'W. 887.76 feet; thence N,11'0928~ 105.37 feet to o point
in the center of o 30 foot wide road right-of-way as butt and r'n p/oc~ (said rood knowh as
SaNmiU Halt Rood); thence along the cerrterl;ne of soKi rood the following four (4} courses,' 56.59
feeE dung tht arc of o 72.43 foot radius curve tv the IeH, the chord of wfvch bears N.50'i4 45 W.
55.16 feet; thence 81.64 feet along the arc of a 74.176 foot radius curve to the right the chord
of wh;cfi bears N.41'02'f6'LV. 77.57 feet,• thence N.0927'46'~V. 63.76 tech thence 78.69 feet along
the arc of a 68.68 foot radius curve to the right, the chord of which bears N.23'21 58 E 74.45
feed . t hence tevv,'r:g said road center line on a course bearing N.64'24 55'W, for 83.78 feet to the
point of 6eginrn'ng, conta;ning 35.04 aces more or less.
TOGETHER h?TFI
A parcel of land located Within S£1/4 of Section 7D, Township 1D South, Range 68 West of the 6th
P. N., having a description based upon a boorinq of N,0017T23'E. from the Suction Comer common
fo Sections 19, 2D Z9 and 30 (monumented by o 3-1/4' aluminum cop B.L.M.) to the Section
Corner common fo Sections 17, 18, 19 and 20 (monumented by a 3-1/4' brass cop U.S.G.L.D.),
with a!I other bearings relative thereto and being more particularly described os follows:
Beginning at o point an the southwesterly right of way line of a thirty (30) foot access easement
from whence the 1/4 Comer common to Seete"one 20 and 29 bears S.OT15Z3"4V. 2047.88 feet;
thence along said right of way !'ore along the arc of anon-tangent curve to the Leff 88.22 feet;
said curve hmnnq a radius of 17D.33 feat and o chord bearing and distance of N.44'D9 29 E. 87.24
lest' thence leaving said right of way one S 64'05 ;34 E. 84.15 feet; thence along the arc aF a
non-tangent curve to the right 78.69 feet, said curve having o radius of 68.66 feet and a chord
bearing and a+"sfonce of 523'2158"W_ 74.45 feet: fhence 5.09'77'46 E 63.76 tech thence along the
art of a tangent curve to the felt 2.01 fast, sold curve having a radius of 73.80 feet and a chard
bearing and distance of S 10'!4 40 E. 2.Q 1 feet: thence N.4T38 25Z!'. 159.39 feet to the Point of
Beginning, said parcel contains D.232 acres, more or fees.
EXCEPTING THEREFROM
A parcel of load located Within the SE1/4 Section 20, Township 1D South, Range 88 West of [he
6th P.M., paring a descripfrbn based upon o bearing of N.DQ'07'23 E from the Section Corner
common to Sections f9, 20, 29 and 30 (monumented by o 3-1/4' aluminum cop B.L.N.) to the
Seete'on Comer common to Sections 17, 18, 19 orrd 2D (monumented by o 3-1/4' brass cap
U.S.G.L.O.}, with all other bearings relative thereto and being mare particularly described as follows
Beginning at o point from whence the 1/4 Corner common fa Sections 20 and 29 .bears
S. f4'3334~t! 17B6.27 feet; fhence N. 11'0928'£ fD5.37 feet: thence along the arc of a
non-tangent curve to the left 56.59 feet, said curve hawhg a radius of 724,3 feet and o chord
bearing and dlsfance of N,50'14 45'W. 55.16 feet; thence along the arc of tvngerrf curve to right
79.63 feet said curre having a radius of 74.06 feet and o chord bearing and distance of
N.41"43:3D'W. 75.85 feet; thence 5.4T38Z5 E 267.TZ feet; thence S. i f'D978'W. 67.94 feet; thence
N.65"10'01'1N. 123.50 Ieet to the Point of Beginning, said pares! contains 0.263 acres, more or less.
~~
EXHIBIT B
Map of Property
1vv9 CONSERVATION EASE1~tENT
Pit£PAR£D FOR CRV PRVP£RT1~S LLC
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~~
EXHIBIT "C"
1. Taxes for the year 2009 not yet due or payable.
2. Right of the proprietor of a vein or lode to extract and remove his ore therefrom, should the
same be found to penetrate or intersect the premises hereby granted and right of way for
ditches or canals constructed by the authority of the United States as reserved in United
States•Patent recorded September 22, 1903 in Book 55 at Page 122.
3. Right of the proprietor of a vein or lode to extract and remove his ore therefrom, should the
same be found to penetrate or intersect the premises hereby granted and right of way for
ditches or canals constructed by the authority of the United States as reserved in United
States Patent recorded August 25, 1898 in Book 55 at Page 85.
4. An undivided one-half (1/2) of all oil, gas and other minerals in the subject lands, as set forth in
instrument recorded June 7, 1957 in Book 181 at Page 434, and any and all assignments
thereof.
5. Easement 30 feet in width as constructed and in place as evidenced in Quit Claim Deed
recorded November 10, 1975 in Book 305 at Page 238 and Special Warranty Deed recorded
December 30, 1993 in Book 737 at Page 192 and in Special Warranty Deed recorded March
3, 1995 in Book 775 at Page 364.
6. Terms, conditions, provisions, obligations and easements as set forth in Quit Claim Deed
recorded March 3, 1995 in Book 775 at Page 358 (easement for ingress and egress to the
property)..
7. Easement and right of way for construction, operation and maintenance of water line granted
to Redstone Water and Sanitation District as set forth in Quit Claim Deed recorded January
31, 1995 in Book 772 at Page 920 and Correction Quit Claim Deed recorded February 2, 1995
in Book 773 at Page 173 and Quit Claim Deed recorded June 15, 1995 in Book 783 at Page
564.
8. Easements, rights of way and all matters as disclosed on Plat of CRV Properties LLC 1041
Hazard review Site Plan recorded April 13, 2006 in Plat Book 78 at Page 67.
9. Easements, rights of way and all matters as disclosed on Plat of Boundary Line Adjustment
recorded April 28, 2006 in Plat Book 78 at Page 95.
10. Terms, conditions, provisions, obligations and all matters as set forth in Resolution of the
Pitkin County Community Development recorded April 7, 2009 as Reception No. 557840 as
Resolution No. 23 Series of 2009.
11. Encroachments for Sawmill Hill Road (30 foot wide access easement) as disclosed by Survey
of Wilmore and Company dated February 10, 2009 as Job No. J09025.
12. Easements, rights of way and all matters as disclosed on Subdivision Exemption for Lot Line
Adjustment recorded April 17, 2009 in Plat Book 90 at Page 87.
Hq