HomeMy WebLinkAboutbocc.ord.003.19981101111111111111111111111111111111111111111111111
414992 03/27/1998 03:27P ORDINANC DAVIS SILVI
1 of 14 R 0.00 D 0 00 N 0.00 PITKIN COUNTY CO
AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO APPROVING THE PURCHASE OF A
CONSERVATION EASEMENT FROM THE JAMES E. MOORE FAMILY
PARTNERSHIP L.L.L.P., A COLORADO LIMITED LIABILITY LIMITED
PARTNERSHIP
ORDINANCE #98-aj
RECITALS
1. The James E. Moore Family Partnership L.L.L.P. is the owner of a parcel of land
in Section 14 Township 10 South Range 85 West of the 6th P.M. being more fully described in
Exhibit A of the Contract to Buy and Sell Real Estate.
2. The Board of County Commissioners has determined that the acquisition of a
conservation easement on the property is beneficial for open space purposes.
3. The Board of County Commissioners have negotiated with the James E.
Moore Family Partnership L.L.L.P. for the purchase of an interest in this parcel of land and is
prepared to enter into a contract to Buy and Sell a conservation easement on the property with
the James E. Moore Family Partnership L.L.L.P. as attached hereto as Exhibit A.
NOW THEREFORE, BE IT ORDAINED that the Board of County Commissioners of Pitkin
County, Colorado hereby approves the purchase of a conservation easement, on the parcel of
land situated in Section 14 Township 10 South Range 85 West of the 6th P.M and further
authorizes the Chairman and the Pitkin County Clerk and Recorder to execute and attest the
Contract attached hereto as Exhibit A and any and all documents necessary to complete the
transaction including the conservation easement to be negotiated by the Open Space and Trails
Program and the Moore Family partnership, subject to the approval of the form of such
documents by the County Attorney's office.
INTRODUCED, FIRST READ, AND SET FOR PUBLIC HEARING ON THE 3RD
DAY OF DECEMBER, 1997.
NOTICE OF PUBLIC HEARING PUBLISHED IN THE WEEKEND EDITION
OF THE ASPEN TIMES ON 3RD DAY OF JANUARY, 1998
APPROVED UPON SECOND READING AND PUBLIC HEARING ON THE
28TH DAY OF JANUARY, 1998
PUBLISHED AFTER ADOPTION IN THE WEEKEND EDITION OF THE
ASPEN TIMES ON THE 7TH DAY OF FEBRUARY, 1998
Ordinance #97-
Page 2
ATTEST:
Jea 1 tte Jones
De ' ty Clerk
APPROVED AS TO FORM:
cnJohn Ely
County Attorney
c:\home\barbh\property\moore\ord_I297.doc
BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
Dorothea Farris
Chairperson
Date: i-50-9r
Suz a Konch n
Cou '- Manage
I11 SILVI
1111111111111192 Ititi Ilt It Mt tit41DAVIS
2 of 14 R 0.00 0 0.00 N 0.00 PITKIN COUNTY CO
Are h OVED 1..3Y
°R,Ctj/JlNANCE
i / CJ 63
The printed portions of this form, except (italicized)
(differentiated) additions, have been approved by
the Colorado Real Estate Commission (CBS3-7-96)
TIIIS FORht IIAS IMPORTANT LEGAL CONSEQUENCES ANDTIIE PARTIES SIIOULD CONSULT LEGAL AND TAX
Olt OTIIEIt COUNSEL BEFORE SIGNING.
VACANT LAND/ FARM AND RANCH
CONTRACT #QED L0' NTRACTTO BUY AND SELL REAL ESTATE
Dale January ')S , 199 g
I.PARTIES AND PROPERTY. TII5_2ZTEI2LCQSINT7LTOABIL_Q& COUNTY COt4t4lsS_LONE84
buyer(s) (Buyer], (asjeintlamnts, Ienantfyi0-eo )fl - W�P'e�tt?qOn�' etdg a(l&flgirfigned seller(s) (Seller), agrees to sell, on the terns and conditions set
forth in this contrail, the following describe44.aT-. •?mills County of Pitkin , Colorado, lo wet:
over the legal description set forth on Exhibit "A" attached hereto and made a part hereof
(Skeet Add,ca)
(City, Stale, Zip)
together w II interest of Seller in va sled streets and alleys adjacent thereto, all easements and other appurtenances thereto, all improvements (hereon
all attached frxtur reon, except as herein excluded (collectively the Property).
2. INCLUSIONS/ EXCLUSIO' .. le purchase prim includes the following items (a) ifaltadted to the Properly on the dale dill' . ad: lighting
healing, plumbing ventilating and air con, "• ning fixtures, TV antennas, water softeners, smoke/lire/ burglar alarms, ae• ydevices, inside telephone
wiring and connecting 6lodu/jada, pistils, mirrors, • coverings, intercom systenn,bulb-in kitdun appliance: mkler systems and controls, built-in
vawuntsystems (including accessories), and garage door ope •nduding remote controls, b • it the Property whether attached or not on the
date of this contract:storm windows, stone doors, window and porch s • es, awnings, blinds ens, amain rods, drapery rods, fireplace inserts, fireplace
screens, fireplace grates, heating stoves, storage sleds, all keys and (c)
(d) Wafer Melds. Purdiase price to include the following water ri
(e) Growths Qon. With respect to the grow' • ops Seller and buyer agree as follows N/A.
The above -described '• • ed items(Inclusions) ore to be conveyed to Buyer by Seller by bill of sale genera3._3iia LrInty .eeel or
other appliab gal instrument®at the dating Gee and dear ofall tuxes, liens and enwudxasces, exempt as provided in Seaton 12. The fo
!Maths• urea are excluded from this sale: N/A.
3. I'UItQIASI; PRICEANDTEI(MI. The purchase price shall be f 400 QOO . QO , payable in U.S. dollars byBuyer as follows: (Complete the
applicable terns below.)
(a) EARNEST MONEY.
$ _25_, 000.00 in the form of a Fheck , nsenrulesl noneydeposit and part payment ofthe
purchase price, payable to and held by _]rand Title Qu .Lcj11t e o. ,broker; in its trust amount on behalf ofboth Seiler and Duycr.
i elasinauU.esiad-4e-deliver•tte-earmed-tnoneydapeeittethsedeeingeg...l,;fahsybFerhaf"racasing.
The balance off 32s 0013 .00 (purchase price less earnest money) shall be paid as follows:
(b) CASI( AT CLOSING.
f 375 000 00 , plus dosing costs, to be paid by Buyer at dosing in fiends s,h ids conmplywilh all applicable Colorado laws, width indude ash,
eledrronic transfer Rinds, certified dhedc, .e,wvings and loan teller's diedh, and asahicr's dtcd4 (Good Funds). Subjed to the provisions of Section 4, Wilts
existing loan balance at the time ofdoethy; shall be different from the loan balance in Section 3, the adjustment sisal( be made in Good Funds at doubt/pre
.v
(c) f4E1V LOAN.
$ by Buyer obtaining a new loan.
71his loan will be secured by a
(1st. 2nd, etc)
The loan shall be amortized ova, a period of years at approximately S per including
prindpal and interest not to exceed % per anmm,plus, ifrequired by Dulxr's lender, a deposit of of the satin, . Hood real estate
taxes, property insurance premium, and mortgage insurance premium. lithe loan is an adjustable interest role or graduoled nl loan, the
p gsenls and interest rate e,..;ally dull not exceed the figures set forth above.
Loan discount points, if any, shall be paid to lender at dosing and shall not exceed •A• o total loan amount.
Notwithstanding the loan's interest rate, the first loan discount points shall be paid b
and the balance, if any, shall be paid by
Buyer shall timely pay a loan origination fee not to exceed R ofthe loa • unt and Buyer's loan costs.
(d) ASSUMPTION.
f by Buyer's assuming and agreeing to pay an axis' Deus in this npproxinnnte amount, presentlypayable at
per including principal, interest presently at er annuun, and inclndin esaow for the following as indicated:
red estate taxes, ❑ properly insuracea premium, ❑ no. - , insurance premium, and . Buyer agrees o pay
a loan Transfer fee not to exceed S . At I cox ofassumplion, llne new interest role shall nol exceed % per annunm and
the new payment shall not exceed f principal and interest, plus escrow, if any.
Seller shall [] shall not he aed from liability on said Loan. Ifappliosble, cut ranee with the requirements for release front
liability or reinstatement ofeligibilit be evidenced by delivery at dosiibg ofan appropriate lel hum lender. Cost payable for release ofliability
shall be paid by in on n haunt not to ceed S
(e)SELLER. It1YATETiff eD-PAFINANCING.
by Buyer
executing a promissory note payable Ir
I IIIIII IIIII 111111111111 III 111111 111111 III 11111 1111 1111
S a
414992 03/27/1998 03:27P ORDINANC DAVIS SILVI
3 of 14 R 0.00 D 0 00 N 0.00 PITKIN COUNTY CO
deed of trust.
CRS3-7-96 Vacant Land/Farm and Raudn Cowraa lo Buy and Sell Real Estnle
Page I of 4
1111. form p,oAaced try: Initialed by.
Fn rrss u r n Car'",., IM.a ,, •
900.336-1027
— 1 tY■114II .■ I 111.11 ■11 ■1■■■1 IIIfin.■let air 1uk
41488w 03/25/1998 01:00P CONTRACT DAVIS SILVI
at 40 a A Tra A ra Tfa I fl Ara rye.... as nag et Tv eq.,
printed portions oflhis form except (ilalidrsd) (differentiated) addition, have been approved by the Colorado Real Estate Conurdssion (CBS3-9-93)I
on then. a form u indicated: (Chide one box only.)
❑ UCC o Default Re', *LTD 82-3.93 0 No Righl-Io.Cure NTD 81.11.83
El
seared by a deed of trust encumbering the Property, usingthe formes indicted:
(1st, 2n etc) (Checkout box only.)
❑ Strid Due -on -Sale D72.7-96) ❑ Creditworlhy(TD 73-7-96)
❑ Assumable •Not due • sale (TD 74-796) ❑
The promissory not hall be attiartimd on the basis of years, payable at $ per
including principal and interest at erste of % per annrmt. Payl1enls shall connence and sha • e due on the
day of each succeed in: . Ifnol sooner paid, the balnnro of principal and accrued interest shall be du- id payable
Idler dose Payments
❑ shall ❑ shall not be increased by ofeslintnted annual real estate taxes, and
❑ stall ❑ shall not be increased by of estimated annual property Insurance prenduns
The loan shall also contain the followin, erne as indicated: If any payment is not received within calendar days alter its due date,
• Isle dtarge of Y ofsuds payment sh be due. Interest on lender disbursements under the deed trust shall be Y.
per annual Default interest rate shall be % per umunt
Buyer may prepay without a penally except
4. FINANONQ CONDITIONS AND OBLIGATIONS.
(a)J,OAN APPL CATIO IS). If Bayeris to pay all orV ofthe purdsase price easel fo in Section by obtaining" new loan or if on existing
loan is not to be released at dosing Buyer, if required bysudi lemde , hall make written applica . n within calendar days front acceptance of
this contrail. Buyer shall cooperate with Seller and lender to obtain loos hproval, diligently d timelypursu a sanle in good faith, execute all documents
and furnish all information and documents required by the lender, and, sit j d to Sedion , timely pny the costs ofoblaining such loan or lender consent.
(b)J.OAN APPROVAL If Buyer into pay all or part ofthe purdiu • riceb •btniningn new loan as specified in Sedion 3, this contract ie
conditional upon lender's approval of the new loan on or before . Ifool so approved bysaid dale, this antral shall terminate.
(c) EXISTING LOAN REVII:\Y. Iran existing loan Is not to be relay + a ,.osing Seller shall provide copies of the loan dowmanla(induding
note, deed of trust, modifications) to Ilus .citliin calendar d . front a • • • lance of this control. This contrast is conditional upon Buyer's
reviewand approval ofthe provisions or Audi loan documents. Buyer con its to the provi. •• its of sudi loan documents ifno written objedion is received by
Seller front Bayer within calendar days from Buyer's re I ofsudh documents. the lender's approval of a transfer of the Property is
required, this contract is conditional upon Buyer's obtainingsudh n royal without di tinge in the nn ofsudi loan, except asset forth in Sedion 3. If
lender's approval is not obts`ced on or before , this corm -Ostia! e terminated on such date. IfSeller is to be released
from liability under such existing loan or if Seller's VA eligib'a�' y is to be reinstated and Buyer does not o nit, such compliance asset forth in Sedion 3, this
antrad may be terminated at Seller's option.
(d) ASSUMPTION IIALANU. If Buyer is payoff or pad of the purchase price by assuming an e . ing loan and ifthe edual prindpal balance
ofllte existing loan at the dale of dosing is less than a amount in Sedion 3 and the amount ofasli required from iyer at dosing is increased by more than
S , then Buyer nay teruiun this contract eRedive upon receipt by Seller of Buyer's written non • (termination.
(a) CREDIT INFORMATION. If Byer is to pay all or part ofthe purchase price by executing a promissory: • in favor of Seller or if an existing
loan is not to be released al dosing this •• Irad is conditional upon Seller's approval ofBryees finnndal ability and credit rthiness, which approval shall
be at Seller's sole and absolute disaeti • . In such case: (1) Buyer shall supply to Seller on or before , al Buyer's expense,
information and documents ants ' g Bayer's finnndal, employment and credit condition; (2) Buyer consents that Seller may ver Buyers financial ability
and creditworthiness; (3) any su• mfomation and documents received by Seller shall be held by Seller in confidence, and not release •o others except to
proud Seller's interest in thi onsadiou; (4) if Seller does not provide written notice ofSeller's disapproval to Buyer on or before
, then Seller waives this aidilion. If Seller does provide written notice ofdisapproval to Boyer on or be re said dale,
This contract shall tern te.
3. APPRAISALP VISION.
(Clie• •nly one box.) This Sedion 30 shall ❑ shall not apply.
If a Sedion 3 applies, as indicated above, Buyer shall have the sole optima and election to terminate This contrad If the purdsase price exceed
the Prop s valuation determined by an appraiser engaged by . The contract shall terminate by the Bayer ausing
Seller receive written notice of termination and a copy of soda appraisal or written notice front lender whidi centime the Property's valuation is less
Ilse e purdhase price, on or before , (Appraisal Deadline). If Seller does not
ive such written notice of termination on or before the appraisnl dendline, Bayer waives anyrigld to terrain nit under th is sedlon.
Y":T 0 AI`Pllh\1E. anti_f _..� _h.,...:_.I I_ k..,61..:.._J ..R.. IL. J..t_ .,fIL;_...,,t..... ,I,„11 b, tens', u,.JJ I,
f
7. jfQ ASSIGNABLE. This conked shall not be assignable by Buyer without Seller's prior written consent. Except as so restricted, this contract shall inure
to the benefit of and be bind ins upon the heirs, personal representatives, successors and assigns ofthe parties.
8. EVIDENCE OF TITLE Seller shall Rimish to Bayer, al Seller's expense, either a current commitment for own e04lt,1m sia8 Pp .I9nanwunt equal
to the purchase price er-at-Selleiee-thUe., an-ebalrnafeNille-^.ertifsed to a assent date, on or before 21 days f rcim esdline).
If.-iilleisaxranee-aesaunitment-ie-fumieliedi Buyer mayrequire ofSeller that copies of instruments (or abstrads of instruments) listed in the schedule of
exceptions (Exceptions) in the title insu+ coca commitment also be Burnished to Buyer at Seller's expense. This requirement shell pertain only to instruments
shown of reard in the office :he derk sod recorder of the designated county or counties. The title insurance commitment, together with any copies or
abstracts of instruments Rarnished pursu dial 10 thin Sedion 8, constitute the title documents (Title Documents). Bayer, or Buyer's designee, must request Seller,
in veiling, to Ruttish copies or abstracts a['instruments listed in the schedule of exceptions no Inter than 7 calendar days alter Title Deadline.
1FSeller-fumiehee*rills- iaeurene-outuniimeny Seller ' ill pay the premium at dosing and have the tide insurance policy delivered to Buyer as soon as pradial
afler dosing.
9. TITLE
(a)TITLE REVIEW. Buyer 'Williams the right to Inspect the Title Doanents erabelrael. Written notice by Buyer ofunmerdunlabililyoftitle
or of any other unsalisfadorylitle condition shown by the Tulle Documents ervnbstreel shall be signed by or out beltnlfo( Buyer and given to Seller on or
before 14 calendar days after Title Deadline, or within liive(5) calendar days alter receipt by Buyer orally Title Document(s) or endorsement(a)
adding new Execption(s) to the title anndtnent together with a copy of the Title Document adding new Exuption(a) to title. IfSeller does not receive
Buyer's notice by the date(s) specified above, Buyer accepts the condition of lisle as disclosed by the Title Documents as satisfactory.
(b) MATTERS NOT SHOWN BY THE PUBLIC RECORDS. Seller shall deliver to Boyer, on or before the Tide Deadline set forth In Sedion 8,
true epics of all leases) and survey(s) in Seller's possession pertainingto the Properly and shall disclose to Boyer all easements, liens or other title natters
not shown by the publicreards ofwhich Seller has sdual knowledge. Buyer shall have the right to insped the Property to determine if any third partys) has
any right in the Properly not shown by the publicrearda (soda as au unrecorded easement, unrecorded tense, or boundary line discrepancy). Written notice
ofanyuhsalisfadorycondilion(s)disdo 9S'd� byNI r of, 1 d and atetO�tion shall be signed by or on hellallof Buyer and given to Seller on or before
7 days after de 1iver)q jre�lerbo s not rrreci a Bur& outgo: Ltfaaid dale, Buyer accepts title. aubjed to suds rights, if any, of third parties of
which Buyer has actual knowledge.
(c) SPEC1A I. TAX INC DISTBICI'S. SPECIAL TAXING DISTRICTS MAY DE SUBJECT TO GENERAL OBLIGATION INDEBTEDNESS
TIIAT IS PAID BY REVENUES PRODUCED FROM ANNUAL TAX LEVIES ON T IE TAXABLE PROPERTY WITIIIN SUCH DISTRICTS.
PROPERTY OWNERS IN SUCII DISTRICTS MAY BE PLACED AT RISK FOR INCREASED MILL LEVIES AND EXCESSIVE TAX BURDENS
TO SUPPORT TIIE SER VICING OF SUCH DEBT WI El E• CIRCUMSTANCES ARISE RESULTING IN TIIE INABILITY OF SUCII A DISTRICT
TO DISCI IAROE SUCH INDEBTEDNESS WITHOUT SUCI AN NCR EASE IN M LL LEVIES. RIYr•.n SIIOULD INVESTIGATE TIIE DEBT
11111111111111111111111111111111111111111111II �i 111I
414992 03/27/1998 03:27P ORDINANC DAVIS SILVI
CL3S3-7-96 Vacant Land/Far 4 of 14 R 0.00 D 0 00 N 0.00 PITKIN COUNTY CO
it Mated by:
Page 2 of 4
llhir font, produced by:
Fnrrn all [or• p, curd.
B00-336-1027
414860 03/25/1998 01:00P CONTRACT DAVIS SILVI
2 of 12 R 0.00 D 0 00 N 0.00 PITKIN COUNTY rn
Ube printed portions ofthis form, except (italicized) (differentiated) additions, have been approved by the Colorado Real Estate Commission (CBS3-9-95)]
FINANCING REQUIREMENTS OFTI I AUTIIORIZED GENERAL OBLIGATION INDEBTEDNESS OF SUCH DISTRICTS, EXISTING MILL
LEVIES OF SUCII DISTRICT SERVICING SUCII INDEBTEDNESS, ANDTIIE POTENTIAL FOR AN INCREASE IN SUCH MILL LEVIES.
In the event the Property is located within a special laxingdistrid and Buyer desires to terminate this contract as a result, if written notice is given
to Seller on or before the date set forth in subsection 9(b), this contract shall then terminate. If Seller does not receive Buyer's notice bythe date specified
above, Buyer accepts the aired ofthe Property's indusion in such special taxing distrid(s) and waives the right to so terminals.
(d) 'miff TO CURE IfSeller,eceives notice of unmerchantab ility of title or any other unsatisfadory title condition(s) as provided in subsection
(a) or (b) above, Seller shall use reasonable and to correct said unsatisfadory title condition(s) prior to the date of dosing If Seller fails to coned said
unsatisfactory title condition(s) on or before the date of dosing this contract shall then temdnate; provided, however, Buyer may, by written notice received by
Seller, on or before dosing, waive objedion to said unsatisfadory title condition(s).
Seller to the best ofSeller's current actual know(edge. Buyer or any designee shall have the right to have inspedion(s) of the physial co.• • 'operty
and Inclusions at Buyer's expense. If written notice of anyunsatisfadory condition, signed by or on behalf of .-rveby Seller on or before
(Objection Deadline), the physical condition ofth k • • . _ • n • usions shall be deemed to be satisfactory to Bayer.
Ifsudt notice is received by Seller as set forth above, and if Du . cave not agreed, in writing to a settlement thereof on or before
me), this contrad shall terminate three calendar days following the Resolution Deadline unless, within
the three a , • er receives wriucn notice from Buyer waiving objedion to any unsatisfadory condition. Buyer is responsible for and shall pay for
II. DATE OF CLOSING. The date of dosing shall be (See Addendum) , or by mutual agreement at an earlier date. The hour and place of
dosing shall be as designated by mutual agreement of thappazties
12. TRANSFER OF TITLE, Subject to lender or payment at dosing as required herein Ind compliance byBuyer with the other terns and provisions hereof,
Seller shall execute and deliver a b_.,J...d....flLens conservation easement deed to Buyer, on dosing, conveying the Property
free and dear of all taxes enrol the general taxes for the year of dosing and swept none . Title shall be conveyed
free and dear of all liens for special improvements installed as of the date of Buyer's signature hereon, whether assessed or not- ' ' y
easements (induding able TV), (ii) those matters refleded bythe Title Do vw su section 9(a), (iii) those rights, if
any, of third papar to records in accordance with subsection 9(b), (iv) inclusion of the Property within any special taxing
rcmo,wy,laf o.....
13. PAYMENT OF ENCUMBRANCES. Anyencumbrance required to be paid shall be paid al or before dosing from the proceeds ofthis transadion or
from any other source.
14. CLOSING COSTS, DOCUMENTS AND SERVICES. Buyer and Seller shall pay, in flood Funds, their respective closing costs and all other
items required to be paid at dosing except as otherwise provided herein. Buyer and Seller shall sign and complete all customary or required documents at or
before dosing. Fees for real estate dosing services shall not exceed S 300 ,00 and shall be paid at dosingby
equally by Buyer and Sel 1 sir . The local transfer tax of % ofthe purchase price shall be paid at
dosing by . Any sales and use tax that may accrue because of this transaction shall be paid when due by
13. PRORATION$. General taxes for th„ year of dosing, based on the taxes for the alendar year inmtediatelypreceding dosing, rents, water and sewer
charges, homeowner's association dues, and interest on continuing loan(s), if any, and
shall be prorated to date of dosing
16. POSSESSION. Possession ofthe Property shall be delivered to Buyer as follows: upon delivery of the conservation
naaernant st closing
subject to the restrictions contained in the conservation easement.
. If Seller, after dosing,
fails to deliver possession on the date herein specified, Seller shall be subjed to evidion and shall be additionally liable to Buyer for payment of
$ N/A per day fromthe date of agreed possession until possession is delivered.
It. CONDITION OF AND DAMAGE TO PROPERTY. Except as otherwise provided in this conned, the Property and Inclusions shall be delivered in the
condition exdstingas of the date of this conned, ordinarywear and tear excepted. In the event the Property shall be damaged by Ore or other casualty prior to
time of dosing, in an amount of not more than ten percent ofthe total purchase price, Seller shall be obligated to repair the same before the dale of dosing In
the event such damage is not repaired within said time or if the damages exceed such sum, this contract maybe terminated al the option of Buyer. Should
Buyer eled to arty out this contract despite such damage, Buyer shall be entitled to credit for all the insurance proceeds resultingfrom such damage to the
Property and Indusions, not exceeding however, the total purchase Price. Should any Indusion(s) or service(s) fail or be damaged between the date of this
conned and the date ofdosingor the dale ofpossession, whichever shall be earlier, then Seller shall be liable for the repair or replacement of such
Indusion(s) or service(s) w: a unit of similar size, age and quality, o'r an equivalent credit, less any insurance proceeds received by Buyer covering such
repair or replacement. The riskof loss for any damage to growingaops, by fire or other casually, shall be borne by the partyentitled to the growing sops, if
any, as provided in Section 2 and such party shall be entitled to suds insurance proceeds or benefits for the growing sops, ifany.
18. TIME OF ESSENCE/ REMEDIES. '1'itne is of the essence hereof. If any note or chedcreceived as earned money hereunder or any other payment due
hereunder is not paid, honored ortendc, cd when due, or if any other obligation hereunder is not performed or waived as herein provided, there shall be the
following remedies:
(a) IE BUYER IS IN DEFAU 1.1:
[Chedc one box only.]
❑ (1)SPECIFIC PERFORMANf1. Seller may elect to neat this contract as canceled, in which case all payments and things of value received
hereunder shall be forfeited and retained on behalf of Seller, and Seller may recover such damages as maybe proper, or Seller may eled to treat this contract
as being in full force and effect and Seller shall have the right to specific performance or damages, or both.
(2)J.IOUIDATED DAMAGES. All payments and things of value received hereunder shall be forfeited by Buyer and retained on behalfof Seller
and both parties shall thereafter be released from all obligations hereunder. It is agreed that such payments and things of value are LIQUIDATED
DAMAGES and (except as provided in subsection (c) are SELLER'S SOLE AND ONLY REMEDY for Buyer's failure to performthe obligations of this
contrad. Seller expressly waives the remedies ofspecific performance and additional damages.
(b) JFSELLER IS IN DEFAULT;
Buyer may eled to treat this contract canceled, in which oar all payments and things of value received hereunder shall be returned and Buyer
may recover such damages as may be proper, or Buyer may eled to treat this contrad as being in full force and effect and Buyer shall have the right to specific
performance or damages, or both.
(c) COSTS AND EXPENSES. Anything to the contrary herein notwithstanding, in the event of any arbitration or litigation arisingout of this
contrail, the arbitrator or court shall award to the prevailing party all reasonable costs and expenses, indudingattomey fees.
19. EARNEST MONEY DISPUTE. Notwithstandinganytermination of this contract, Buyer and Seller agree that, in the event ofeny controversy regarding
the tamed money and things of value held by broker or dosingagent, unless mutual written instructions are received by the holder of the earnest money and
things of value, broker or dosing agent shall not be required to take any adion but may await any proceeding or al broker's or dosing agent's option and sole
discretion, may interplead all parties and deposit any moneys or things of value into a court ofcompetent jurisdiction and shall recover court costs and
reasonable attorney fees.
nttSflmiala•a,m,i•al1II� • t7 a uLn t$ : .., • .• ... - ...
involved in such dispute (Disputants) shall first proceed in good faith to submit the matter to mediation. ft s': • - , • m an acceptable
mediator and will share equally in the cost ofsuch mediation. In , - - . • - no resolved within thirty (30) calendar days from the date
written notice requestin ^-r ' • • a u ant to the other(s), the mediation, unless otherwise agreed, shall ternnate. This section shall not
CBS3-7.96 Vacant Land/ Farm and Ranch contract to Buy and Sell Real Estate
(See Addendum attached hereto)
111101111111111111111111100111111011111111111
414992 03/27/1998 03:27P ORDINANC DAVIS SILVI
5 of 14 R 0.00 D 0 00 N 0.00 PITKIN COUNTY CO
I1,Is form produced by:
Fosmulatormfre axeo..e
600-336-1027
414880 03/25/1998 01:00P CONTRACT DAVIS SILVI
3 of 12 R 0.00 D 0.00 N 0.00 PITKIN COUNTY CO
nl
21.
it printed portions oflh is form except (italicized) (differentiated) additions, have been approved by the Colorado Red Esale Commission (CBS39-95)1.
ADDITIONAL. PROVISION$: (The language oflhese additional provisions has not been been approved by the Colorado Red Estate Commission).
Additional provisions are set forth in the Addendum attached hereto and made a part
hereof•
1 JIECDhThIENDATION OFI,EGA LCDIINSEI. Dysi®ring this document, Buyer and Seller acknowledge Ibnl the Selling Company or the Llsling-
2o pony has advised that this doanrrent has important legal consequences and has reconmunded the examination oftille and consultation with legal and tax
it other counsel before signing this contract
3. TERMINATION. In the event This wnlrsd ',terminated, all payments and things of value received hereunder shall be returned and the parties shall be
hereunder, Sedion
elieved ofall obligations subject to 19. •
!4. SELLING COMPANY BROKER RELATIONSHIP. The selling broker RCA and it•
,
'alespersons have been engaged as . Selling Conepany has previously disdoaed in
_HZ»
ailing to the Buyer that different relationships are available chide include buyer agency, seller agency, subagency, or
2$. NOTICETO RUVEf• Any notice to Bayer shall be effective Mien received by Bayer, or, iflh is box is checked
Iransadion-broker.
• when received by Selling Company.
26, NOfICF, TO SELLER. Any notice to Seller shall be efedive stun received by Seller or Listing Company.
27. TI011If1CATION OFTIIIS CONTRACT. No subsequent modification ofany orate terns of this contract shall be valid, binding upon the parties, or
enforceable unless made in wiling and signed by the parties.
28. $NTIRE AGREEMENT. This contract constitutes the entire contract between the parties relating to the subject hereof, and any prioragreenxnl
pertainingdwreto, uhelher oral of urillen, have been merged and integrated into This contract.
29. NOTICE OF ACCEPTANCE: COUNTI' PPART4. This proposal shall expire unless accepted in writing by Buyer and Seller, as evidenced by their
signatures below, and the oh- -'•wg party receives notice ofsudt aaxptance on or before • 19
(Acceptance Deadline). Ifaccepted, This doe:runt shall become a contrail belueen Seller and Buyer. A copy of this doaenvent maybe executed byeach party,
separately, and when each party has executed aa copynt ppy thereof, such copies token together shall bedeeed to be a fell and complete contract betwen the parties.
I)JFKKIN�JCOUNTY ARD l oUNTY,COMMISSIONKRS
Byer WJJ Chairperson Buyer
aiier4C•4 4/4/2.rs
Dale of Buyer's signature Dale of Buyer's signature
SCBuyer's
E JAMEh: IheL tYA iillr, a Lolorado limited_ liability limited partnersh
ay
Seller Thomas Moore Seller
Dale of Seller's signature Date of Seller's signature
Seller's Address
The undersigned Broker(s) adnmwledgca receipt of the earnest uw
•• Arne its Broker Relotionshit. .. sal forth in Sedion 24. Selling Company
i
1 IIIIII
414992
vd
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03/27/1998
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SILVI
Name and Address 6 of 14 R 0.00 D 0.00 N 0.00 PITKIN COUNTY CO
By.
Date
Listing Company
•
Name and Address
By.
- Dale
Note: Closing huhudima should be signed al the lime Ihla contend Is signed.
CDS3.7-96 Vacant land/Farm and Ranch Conlrad to buy and Sell Real Estate
Initi •d by:
Page 4 of 4
ip
11da fonn produced by:
Form asIn toe'%. eve...•
e00-336-1027
1 1■■111 ■mow ��w��w ..�.. �•• �. . . .- --- I ILIA IIII 1■■1
414860 03/28/1998 01:00P CONTRACT DAVIS SILVI
4 of 12 R 0.00 D 0 00 N 0.00 PITKIN COUNTY CO
414860 03/25/1998 01:00P CONTRACT DAVIS SILVI
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ADDENDUM TO THAT CERTAIN VACANT LAND/FARM AND RANCH CONTRACT TO
BUY AND SELL CONSERVATION EASEMENT DATED JANUARY 1998.
BETWEEN THE pITRIN COUNTY BOARD OF COUNTY COMMISSIONERS (THE
"BOCC"). AS BUYER. AND THE JAMES E. MOORE FAMILY PARTNERSHIP
LLLP. A COLORADO LIMITED LIABILITY LIMITED PARTNERSHIP. AB
BELLER.
1. Addendum to Control. To
contained in the Addendum conflict
the contract to which the Addendum
the Addendum shall control.
the extent the provisions
with provisions contained in
is attached, the provisions in
2. Interest on Earnest Money. The Buyer's earnest money
shall be deposited in an interest bearing account with all
interest earned thereon accruing to the Buyer's benefit. The
Buyer's tax identification number is 99-/Drir Y rizi Earnest
money and intcrast thereon will be fully refundable to the Buyer
if the actions described in Paragraphs 5, 6, 7, and 8 below do
not occur prior to the closing date hereof.
3. purchase Price. The purchase price of this
Conservation Easement shall not constitute a stipulation or
agreement regarding the fair market value of this Property, and
shall not be admissible in any eminent domain or other proceeding
as evidence of the fair market value of the Property.
4. Ala of Property. The Property shall be kept in a
natural undeveloped state (e.g. no cutting of vegetation), with
the exception of the construction, use, and maintenance of Nordic
ski trails, Alpine ski trails, and ski lifts, as well as
disturbances that are necessary to implement the requirements of
the Tramway Board related to access or use of the ski lifts. The
public shall only have access to the Conservation Easement parcel
for the Nordic ski trails developed by the Nordic Council for
cross-country skiing purposes in the winter season only. The
Alpine ski trails shall have access limited to those parties
residing in the Moore PUD Project and other parties who are
granted access rights by Seller, its successors and assigns, such
as the Meadowood Subdivision, the Aspen Highlands Subdivision,
the Aspen School District, and the Aspen Valley Ski Club. The
cross-country and Alpine ski trails shall be identified within
twenty-four (24) months of the recordation of the Conservation
Easement, and shall become a part thereof. After the expiration
of the twenty-four (24) month period, any movement or expansion
of the cross-country or Alpine ski trails shall require the
approval of the Open Space Board, which will not be unreasonably
withhel?. Seller shall have the right to post signs in the
Conservation Easement, as well as any other uses necessary to
implement the intent of this Paragraph 4, which are customary for
the uses of Alpine and Nordic skiing, and the maintenance of
Alpine and Nordic skiing areas. No mechanized equipment or
vehicles shall be permitted in the Conservation Easement, except
for equipment or vehicles necessary for ski -related uses and
maintenance. The Property shall not be utilized for any other
purposes, and no commercial, residential, or other use shall be
allowed, including but not limited to, employee housing or free-
market housing, or transportation facilities of any kind. Upon
the conveyance of the Property upon which the Conservation
Easement is located to the Moore P.U.D. Master Homeowners'
Association, Inc., the Executive Board of the Moore P.U.D Master
Homeowners Association, Inc. shall be empowered to deal with
Pitkin County on all matters pertaining to the Conservation
Easement.
5. Specific Contingency - Agreement Between Seller and
Buyer Regarding the Use of the Property. This Contract is
expressly contingent upon the Buyer and the Seller reaching an
agreement regarding the form and terms of the Conservation
Easement to be placed on the Property, which will incorporate the
-1-
11111111111 111111 111111 III 111111 111111 III 11111 1111 1111
414992 03/27/1998 03:27P ORDINANC DAVIS SILVI
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11 .\I■■1 111■11-M1
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provisions of Paragraph 4 above. This written agreement shall be
agreed to within thirty (30) days of the date of full execution
of this Contract, or at Seller's option, Seller may terminate
this Contract and return all earnest money received hereunder,
including all interest accrued thereon, to Buyer.
6. Specific Contingencies - Approvals by the BOCC. The
contingencies listed in this Paragraph 6 must be fulfilled as
described below. In the event the below -described contingencies
are not fulfilled to the complete satisfaction of Seller, then
Seller shall have the option, at Seller's sole discretion, to
terminate this Contract, and return all earnest money received
hereunder, including all interest accrued thereon, to Buyer.
(a) Contract Approval. This Contract is expressly
contingent upon its official approval by the BOCC at or before
December 30, 3.997, unless the time period for approval is
extended by Seller. The parties hereto understand and agree that
this Contract will be presented for approval at two (2) regular
and official meetings of the BOCC, the second of those to include
a public hearing. Buyer agrees to use diligent good faith
efforts to meet this schedule. In the event approval has not
been obtained by December 30, 1997, this Contract will terminate
unless Seller extends the time for approval, in which event the
closing date will be thirty-one (31) days after all contingencies
contained in Paragraphs 5, 6, 7, and 8 hereof have been met,
provided that such BOCC approval is obtained.
(b) Subdivision Exemption Approval for Creation of
parcel "A". This Contract is expressly contingent upon the
official approval by the BOCC of an essential community
subdivision exemption for the creation of Parcel "A" described on
the attached Exhibit "B" and its sale to the City of Aspen, on or
before February 15, 1998, unless the time period for approval is
extended by Seller.
(c) Moore Family PUD Final Plat Approval. This
Contract is expressly contingent upon the official approval by
the BOCC at or before February 15, 1998, of the Moore Family PUD
Final Plat, unless the time period for approval is extended by
Seller. In the event approval has not been obtained by February
15, 1998, this Contract will terminate unless Seller extends the
time for approval, in which event the closing date will be
thirty-one (31) days after all contingencies contained in
Paragraphs 5, 6, 7, and 8 hereof have been met, provided that
such BOCC approval is obtained.
7. Soepific Contingencies - Requirements for Sale to
Sliver. The contingencies listed in this Paragraph 7 must be
fulfilled as .iescribed below. In the event the below -described
contingencies. are not fulfilled to the complete satisfaction of
Seller, then seller shall have the option, at Seller's sole
discretion, to terminate this Contract, and return all earnest
money received hereunder, including all interest accrued thereon,
to Buyer.
(a) City of Aspen Water Service. This Contract is
expressly contingent upon the City of Aspen providing water
service to the Moore P.U.D. upon the terms and conditions set
forth in City of Aspen Resolution No. 60, Series of 1995.
(b) Closing of Contract with Aspen School District.
This Contract is expressly contingency upon the consummation and
closing of the sale of the Yellow Brick Building (as contemplated
by the Contract to Buy and Sell Real Estate dated September 26,
1995, ketween the City of Aspen and the Aspen School District,
and amended by a First Amendment dated August 30, 1997) on or
before February 15, 1998.
-2-
1111111 1111111111111
414992 03/27/1998 03:27P ORDINANC DAVIS SILVI
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t 1111311111 1I I I II III IIIIII III 111E t11f1
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8. soeQific Contingency - Dismissal and Settlement of
Lawsuit. The parties hereto hereby acknowledge that certain
restrictions on the use of Parcel "A" have been negotiated by the
City of Aspen and certain residents of the Meadowood Subdivision
to settle Pitkin County Case No. 97 CV 134-1. This Contract is
expressly contingent upon the settlement and dismissal of said
lawsuit prior to the date of closing hereof. In the event this
contingency is not fulfilled to the complete satisfaction of
Seller, then Seller shall have the option, at Seller's sole
discretion, to terminate this Contract, and return all earnest
money received hereunder, including all interest accrued thereon,
to Buys'
9. Title Insurance. If Buyer approves of the condition of
title, or any objection made is cured or subsequently waived by
Buyer, then upon closing of the purchase of the Conservation
Easement, title to the Property on which the Conservation
Easement is located will be subject only to the lien for current
taxes, and approved or waived exceptiosn shall be insured by a
standard owner's policy of title insurance at the cost of Seller.
Such title policy shall protect Buyer from any claim arising from
any mechanics' liens asserted against the Property for work which
occurred prior to closing (excluding work performed at the
direction of Buyer).
10. Closing Date. The closing date for this Contract shall
be thirty-one (31) days after all the contingencies listed in
Paragraphs 5, 6, 7, and 8 have been met or satisfied.
11 seller's Warranties and Representations Seller
represents and warrants that there are no delinquent bills for
work, labor, or materials done, performed, or furnished that
would give rise to a mechanic's lien against the Property.
12. Notice. Any notice required under the Contract shall
be deem_d delivered when hand delivered to the following
addresses or by facsimile transmission to the following numbers:
Tf to Buyer:
Pitkin County Board of
County Commissioners
506 E. Main St.
Aspen, CO 81611
Fax: 920-5198
If to Seller:
The James E. is.;ore
Family Partnership LLLP
c/o Gideon Kaufman, Esq.
315 E. Hyman, #305
Aspen, CO 81611
Fax: 970-925-1090
With copies to:
John M. Ely, Esq.
Pitkin County Attorney
530 E. Main St.
Aspen, CO 81611
Fax: 920-5198
Jane Ellen Hamilton, Esq.
Open Space Board
530 E. Main St.
Aspen, CO 81611
Fax: 920-5198
With a copy tQ:
Gideon Kaufman, Esq.
Kaufman & Peterson
315 E. Hyman, #305
Aspen, CO 81611
Fax: 970-925-1090
13. No Commission Seller hereby represents and warrants
that no commission is being paid to any real estate broker or
realtor in this transaction. No realtor or licensed real estate
agent has been engaged by either party, and no claim for
procuring cause for commission in the sale or in listing the
Property can be made by any person or brokerage office.
14. Governing Law. This Contract, for all purposes, shall
be construed in accordance with and governed by the laws of the
State of Colorado.
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IIIIII 11111 IIIIII IIIIII III IIIIII IIIIII III 111111111 I"I
414992 03/27/1098 03:27P ORDINANC DAVIS SILVI
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-11111I-11111-111111-111111-III-Illlli111111-I lI-uIIII alll llll-
414860 03/25/1998 01:00P CONTRACT DAVIS SILVI
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15. Binding Effect. Except as herein otherwise provided,
this Contract shall inure to the benefit of and shall be binding
upon the heirs, executors, administrators, personal representa-
tives, successors and assigns of the parties hereto.
16. Counterparts and Facsimile. This Contract may be
executed in multiple counterparts, each of which shall have the
force ana effect of the original and facsimile signatures shall
be deemed the sameas delivery of original signatures.
17. Survival of Obligations and Warranties. All
representations and warranties and all -unperformed obligations of
the Buyer or the Seller herein stated shall survive the
conveyance of the subject real estate to the Buyer and the
payment of the purchase price to the Seller, and all parties
shall remain bound by this contract until all of their respective
obligations hereunder have been completely performed and shall
not be merged into any.document of conveyance.
day of January, 1998.
Dated this
BUYER:
PITKIN COUNTY BOARD OF
COUNTY COMMISSIONERS
By
Willaim R. Tuite, Chairperson
_Ds-oe V=c_r r �S
APPROVED AS TO FORM:
OPEN SPACE BOARD
By Williams, � .S
l aFales,
Chairperson
APPROVED AS TO FORM:
John M. Ely, -
Pitkin Coupty_Attorney
RECOMMENDED FOR APPROVAL'
SELLER:
THE JAMES E. MOORE FAMILY
PARTNERSHIP LLLP, a Colorado
limited liability limited
/
partnership
By ph Jet 14
Thomas Moore
ne Ellen Hamilton, Chief Executive Officer_
pen Space and Trail
MANAGER APPROVAL:
Suz
ne Kon han, County Manager
C:\clients\Moore\open space add-clean2
-4-
1IBM 111111 ll111111111111111111(111111111III 1111
414992 03/27/1998 03:27P ORDINANC DAVIS SILVI
10 of 14 R 0.00 D 0.00 N 0.00 PITKIN COUNTY CO
Jan-05-98 01:03P Tom Moore
in 5.1T18 1.4011
970-926-2889 P.02
MI UroD r z�a
is, 'wino affect. Exempt as herein otherwise provided,
this Contract shall inure to the benefit of and shall be binding
upon the hairs, exetutorn, adainlstrators, personal representa-
tives, successors and assigns of the partite hereto.
la. Opuatareart■ w_ ■� p erjails, This Contract may be
executed in multiple counterparts, each of which shall have the
force and eletut of the original and facsimile signatures shall
be deemed the same as delivery of original signatures.
17. ! iv l of obligation• aye dot rraatiea. All
representations and warranties and all unperformed obligations of
the Buyer or the Seller herein stated shall survive the
conveyance of the abject real estate to the Buyer and the
payment of the purchase price to the Seller, and all parties
shall remain bound by this contract until all of their respective
obligations hereunder have bean completely performed and shall
not ba merged into ny document of conveyance.
Dated thisl M day of January, 1998.
BUYER: SELLER:
PITKIN COUNTY BOARD OF THE JAMS E. )OORE FOXILY
COUNTY CONNISSIONERS PARTNEASHIP LTJ.P, a Colorado
limited liability limited
r-_paztne=Fhip
By Se Pf2ewpas Dl c e By � �.�-c�l �.
Millais Tustc, C airpersun Las Moore
APPROVED AS TO FORM;
OPEN SPACE BOARD
By "Se c- �aNto 'tag
Williams arcs, C°hl ate coon
APPROVED AS TO FORA:
John M. Ely,
Pitkin county Attorney
414860 03/25/1998 01:00P CONTRACT DAVIS SILVI
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11111111111111111Mill III i11111III111III 111111l111111
414992 03/27/1998 03:27P ORDINANC DAVIS SILVI
11 of 14 R 8.00 0 0.00 N 0 00 PITKIN COUNTY CO
C:\claente\tgore\e9en space add -clan?
4111111111111111111111111111ni
414860 03/25/1998 01:00P CONTRACT DAVIS SILVI
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it
ADDITIONAL SIGNATURE PAGE TO CONTRACT DATED JANUARY OI(, 1998.
BETWEEN TUE JAMES E. MOORE FAMILY PARTNERSHIP LLLP A COLORADO
LIMITED LIABILITY LIMITED PARTNERSHIP AS SELLER AND THE PITKIN
COUNTY BOARD OF COUNTY COMMISSIONERS. AS BUYER
RECOMMENDED FOR APPROVAL:
AuOia4 //Of
e Ellen Ha ilton Date
thief Executive Officer
Pitkin County Open Space and Trails
APPROVED AS 1J CONTENT:
/�Ian /17
12e 1
William E. L. Fales, Chairman
Pitkin County Open Space and Trails
Board of Trustees
MANAGER APPROVAL:
�Lm A-D 11LY�G1
Suzae Koncljan, County Manager
APPROVED AS TO FORM:
Date
� Da e
John M. Ely, Es-g — Date
Pitkin CQ3dnty Attorney
1111111 11111 111111111111I I 1111111111111 I I 11111111111111
414992 03/27/1998 03:27P ORDINANC DAVIS SILVI
12 of 14 R 0.00 D 0.00 N 0 00 PITKIN COUNTY CO
k
an-06-98 01:03P Tom Moore
• la S. 14°° 124NP11
970-926-2889 P.01
P. VVUJ '. •'
jltr/tied pont...flit Ararr (iali.rd)(Alm r.idad)addiw..tA.n lln .yfn.4 ly R. CoW.d. IWta. G.a.r.(CM3 fl)1
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Additional ocovi.l.os arr tat Loc\A Ln the adland . .ttataad hnc.to 1BA—an•Y ita.rt
a $theta ll.n(M(M1ital tountr fir Splint 1A.t .e t.. :an al MMW..r.* dolt ohs JN0.SMrfsaw lit• 1
hnrfar .I*s at Mi. door.' ha ;avenue Iar1 rnrt.ra. out Mann. .dS rt 41124411111111 .fawn M wwMi.w .M I.al W W
we.. wood Mar Irmo Iti«a.t
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always
a rr.Ofb.MitpY OR(NIRR RrlAT10N/Illt rode•//1reYd fed. _..M�{rlid 6A�._ •
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414880 03/25/1998 01:00P CONTRACT DAVIS SILVI
11 of 12 R 0.00 D 0.00 N 0.00 PITKIN COUNTY CO
.o. r.di' J. a_ ,.a,vy 1 t,u. taO bULAULOLA YYALYA ALILA
(970) 9494004
FAX (970) 945.5948
i;M=
mum
aCN11Mfq
eeceotrtattee
__..VMS.
119 West BBt, Sidle 200
Glenwood Spiings, CO 81601
December IS, 1997
Moore • Open Space 7
Apical of land situated In the SI/2NBI/4. NI/,MSEt/4 of Section T4. Towtuhip TO South, Range as West of
the 0 P.34. said parccl (King more parciwlady described as fellows;
Beg)ndng at the CS 1/16 of said Section 14. with all bearings bring Moths to a baring of
N 00' T %19' W bronco the S 1/4 coma and the C 1/4 cornet of mid Section is chance
N OO' IS'39' W 107/49 feet along the westerly ulna of the NWI/46E1/4 of said Seetlon 14t than
N 89's0'28' B 319.59 feet; thence N 13'02'S7' B 527.74 fat chance N 85e 38'16' E 163.71 ferry thence
N 15'19'3T" E 211.88 fati chino S 86'42'ST' E 1037.91 feet to the wanly line of the SSI/4NBI/4 of geld
Section it thence S 00'03'43" W 229.30 fen along the aatorly line of said Scccion 14 to the E 1/4 coma:
chance 5 00'IS'53" W t361.77 fca to the S I/I6 cornet of said Section 14; thence N 89'07'53' W 1510.90
fecc to for SS 1/16 comet amid Sestina I4; thence N 89'07'33' W 1310.90 fees so the CS 1/16 pain of
beginning, 'aid parcel contains 89.30T accu more of let".
932058 SE
1111111 111111 Mill III 1111111111111111111111 III Ill
414992 03/27/1998 03:27P ORDINANC DAVIS SILVI
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11111111111111111
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CONTRACT # fr-/09
DEED OF CONSERVATION EASEMENT
THIS DEED OF CONSERVATION EASEMENT (the "Conservation
Easement") is made and entered into this bday of 1998,
between the JAMES E. MOORE FAMILY PARTNERSHIP, LLLP, ° o orado
limited liability limited partnership ("Grantor"), and THE BOARD
OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO (collectively,
the "Grantee").
RECITALS
WHEREAS, Grantor is the record owner of that certain real
property in Pitkin County, Colorado, consisting of approximately
89.301 acres, which is more particularly described on Exhibit "A"
attached hereto and made a part hereof, and which is referred to
herein as the "Moore Open Space Property"; and
WHEREAS, the Property contains open space, scenic and
ecological features and values important to the Grantor, the
residents of Pitkin County, Colorado, and the people of the State
of Colorado (the "Conservation Values"); and
WHEREAS, preservation of wildlife habitat and open space
conforms with Policies 2-120 (Scenic Quality), and 2-160
(Wildlife Management) of the Pitkin County Land Use Code; and
WHEREAS, preservation of these natural features and values
will yield substantial public benefit; and
WHEREAS, the Moore Open Space Property, consisting of
approximately 89.301 acres, remains in a substantially
undisturbed and natural state to be documented by Grantee, with
the advice and consent of Grantor, subject to the allowable
impacts of the permitted uses, which documentation will be kept
on file at the offices of the Grantee; and
WHEREAS, Grantor desires and intends to preserve and
maintain the ecological health, the wildlife habitat, open space
character and scenic qualities and values within and upon the
Moore Open Space Property, by encumbering the Moore Open Space
Property in its entirety with a Conservation Easement for the use
and benefit of Grantee, pursuant to the provisions of Section 38-
30.5-101, et sea., Colorado Revised Statutes, which provides for
maintenance of these values by the continuation of land use
patterns, including, without limitation, those relating to the
lift towers, and gladed Alpine and Nordic ski trails to be
developed by Grantor and the Aspen/Snowmass Nordic Council. The
public shall only have access in the winter season to the Nordic
ski trails (developed by the Aspen/Snowmass Nordic Council for
cross-country ski purposes). The Grantor may, in its sole and
absolute discretion, allow a summer trail use on the Property.
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APPROVED BY
ORDINANCE
# 9r-c 3
The Alpine ski trails shall have access limited to those parties
residing in the Moore Family PUD, a Planned Community, as
described on the Plat recorded on /rtg4ust/0 , 1998, in Plat Book
yK at Page 0( , in the office of the Clerk and Recorder of
Pitkin County, Colorado (referred to hereafter as the "Moore
Family PUD"), and other parties who are granted access rights by
Grantor, its successors and assigns; and
WHEREAS, Grantee is a "qualified conservation organization"
as defined by the Internal Revenue Code; and
WHEREAS, Grantor, as owner of the Moore open Space Property,
owns the affirmative rights to identify, preserve and protect, in
perpetuity, its open space character and its significant
relatively natural features and values and further intends, as
owner of the Moore Open Space Property, to convey to Grantee the
right to preserve and protect the Conservation Values of the
Moore Open Space Property, in perpetuity; and
WHEREAS, by acceptance of this Conservation Easement,
Grantee acknowledges its commitment to honor the intentions of
Grantor as expressed herein to preserve and protect in perpetuity
the Conservation Values of the Moore Open Space Property for the
benefit of this and future generations;
CONVEYANCE
NOW, THEREFORE, for and in consideration of the facts
recited above and the mutual covenants contained herein, and for
other good and valuable consideration, the receipt and
sufficiency of which is hereby confessed and acknowledged,
Grantor hereby grants and conveys to Grantee, its successors and
assigns, a perpetual conservation easement, in gross, pursuant to
Section 38-30.5-101, et sea., Colorado Revised Statutes (the
"Conservation Easement"), over, across and upon the Moore Open
Space Property as legally described on Exhibit "A", subject to
the terms and conditions hereinafter set forth. Grantee hereby
acknowledges, accepts without reservation and agrees to be bound
by the terms and conditions of this Conservation Easement.
1. Purpose. It is the essential purpose of this
Conservation Easement to preserve and protect, in perpetuity, the
natural, ecological, wildlife habitat, scenic, open space, and
aesthetic features and values of the Moore Open Space Property.
In furtherance of the foregoing objective, this Conservation
Easement is intended to establish permitted uses of the Moore
Open Space Property which are consistent with the purposes of the
Conservation Easement, and to restrict the level of development
and human activity on the Moore Open Space Property, in
perpetuity, to the extent provided for herein, to further comply
with Pitkin County policies, including preservation of wildlife
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habitat and open space conforms with Policies 2-120 (Scenic
Quality), and 2-160 (Wildlife Management) of the Pitkin County
Land Use Code.
2. Grantee's Affirmative Right@. To accomplish the
purposes of this Conservation Easement, the following affirmative
rights are hereby granted to Grantee:
(a) To identify, preserve, and protect, in perpetuity,
and in the event of their degradation or destruction by Grantor,
its successors and assigns, including the Moore Family PUD Master
Association, Inc., hereinafter referred to as Homeowners'
Association, individual Lot Owners, and their respective Guests
(the term "Guest" is defined as any owner or lessee of a Lot, and
any family member, customer, agent, employee, independent
contractor, guest, licensee, or invitee), to compel the
restoration of the natural ecological wildlife, open space, and
scenic features and values of the Moore Open Space Property,
except degradation or destruction caused by any other third
party. (See limitations on restoration for actions of
trespassers set forth in Paragraph 17(c) below.)
(b) To enter upon the Moore Open Space Property as
necessary to exercise the rights herein granted and to enforce
the terms hereof. Grantee shall provide Grantor at least forty-
eight (48) hours advance notice prior to each visit to the Moore
Open Space Property by Grantee. Grantee's activities hereunder
shall not unreasonably interfere with the uses being made of the
Moore Open Space Property, consistent with this Conservation
Easement and the permitted uses hereunder, at the time of such
entry. The Grantee shall also have the right of immediate entry
to the Moore Open Space Property, if, in its sole judgment, such
entry is necessary to prevent damage to or the destruction of the
Conservation Values protected by this Conservation Easement.
(c) To enjoin any activity on or use of the Moore Open
Space Property which is inconsistent with the terms and intent of
this Conservation Easement, and to enforce and compel the
restoration of such areas or features of the Moore Open Space
Property as may be damaged by such activity, subject to
limitations set forth in Paragraph 17(c) below.
(d) To place one (1) sign, at Grantee
visible to the public, upon the Moore Open Space
identifying the role Grantee plays in conserving
Space Property. Such sign shall be presented to
approval of its design, size and location, which
not be unreasonably delayed or withheld.
execution
the above
's expense,
Property,
the Moore Open
Grantor for
approval shall
(e) The Grantor acknowledges and agrees that, upon
and delivery of this Conservation Easement to Grantee,
rights give rise to an immediately vested property
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right in Grantee with a fair market value that is at least equal
to the proportionate value that the Conservation Easement, at the
time of this Conservation Easement's execution and delivery,
bears to the value of the Moore Open Space Property as a whole at
that time. This proportionate value of Grantee's property rights
created herein shall remain constant.
3. Easement Documentation. A collection of baseline data
on the Conservation Area and its resources (the "Baseline
Documentation") shall be prepared by the Grantor. The data and
explanatory text, photographs and maps to be assembled in the
Baseline Documentation is agreed by the parties hereto to provide
an accurate representation of the Conservation Area at the time
of this grant, notwithstanding the fact that the Baseline
Documentation will be prepared after the effective date of this
grant, and the parties acknowledge that the Baseline
Documentation will serve as an objective information baseline for
monitoring compliance with the terms of this Conservation
Easement. In the event Grantor, in its sole and absolute
discretion, allows a summer trail use on the Property, a revised
Baseline Documentation will be prepared. The parties agree that,
in the event a controversy arises with respect to the nature and
extent of the biological or physical condition of the
Conservation Area, the parties shall not be foreclosed from
utilizing all other relevant or material documents, surveys,
reports, and other information to assist in the resolution of the
controversy.
4. Consistent Uses. The following uses and practices,
though not an exhaustive recital of consistent uses and
practices, are consistent with this Conservation Easement when
carried out on the Moore open Space Property, and these uses and
practices shall in no way be precluded by this Conservation
Easement, to wit:
(a) Development and maintenance of the gladed Alpine
and Nordic ski trails by Grantor and the Nordic Council and the
installation and maintenance of ski lift towers. The public
shall only have access in the winter season to the Nordic ski
trails (developed by the Nordic council for cross-country ski
purposes). The Alpine ski trails shall have access limited to
those parties residing in the Moore Family PUD and other parties
who are granted access rights by Grantor, its successors and
assigns. The location of the ski trails will be identified
within two (2) years of the date of this Conservation Easement.
At that time, an as -built map will be provided and the baseline
study will be amended.
(b) The cutting and removal of weeds, as well as dead,
dying or diseased timber or brush, as may be reasonably necessary
for fire protection or disease prevention purposes; however,
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Grantor is encouraged to leave standing dead timber for habitat
purposes to the extent such dead timber does not pose a danger.
(o) Maintenance of roads and trails existing as of the
date of this Conservation Easement. The right of Grantor, in its
sole and absolute discretion, to allow the development of summer
use public trails.
If any of the uses contained in Paragraph 2 are undertaken by
Grantee (at its discretion, and without liability if it does not
undertake any of those Consistent Uses), they shall be at
Grantee's sole expense, and will not interfere with Grantor's
rights under this Agreement. No permitted use described above
may interfere with the Consistent Uses set out under subparagraph
3(a) above.
5. prohibited uses. The following uses and practices by
Grantor shall be prohibited:
(a) The material change, disturbance, alteration or
impairment of the natural, ecological, wildlife, open space or
scenic features or values of the Moore open Space Property,
except as otherwise permitted in this Conservation Easement.
(b) The Development of any Structures or roads on the
Moore Open Space Property (as such terms are defined in the
current version of the Pitkin County Land Use Code), except as
permitted in this Conservation Easement, or as requested by
Grantor and granted the approval of by Grantee, such approval to
be based upon a determination by Grantee that the construction of
and proposed location of any structure or road will not diminish
or impair the Conservation Values of the Moore Open Space
Property, or is otherwise consistent with this Conservation
Easement, which approval shall not be unreasonably withheld.
(a) The removal, destruction, spraying or cutting of
native vegetation or timber, except as permitted in this
Conservation Easement.
(d) The exploration for or extraction of minerals,
oil, gas, or other hydrocarbons, soils, sands, gravel, or other
materials (but not including water) on or below the surface of
the Moore Open Space Property.
(e) The dumping or other disposal of refuse, garbage,
or other unsightly or offensive material. Notwithstanding
anything in this Conservation Easement to the contrary, this
prohibition does not make the Grantee an owner of the Moore Open
Space Property, nor does it permit the Grantee to control the use
of the Moore Open Space Property by the Grantor, which may result
in the storage, dumping or disposal of hazardous or toxic
materials; provided, however, that the Grantee may bring an
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action to protect the Conservation Values of the Moore Open Space
Property, as described in this Conservation Easement. This
prohibition does not impose liability on the Grantee, nor shall
the Grantee be construed as having liability as a "responsible
party" under CERCLA, or similar federal or state statutes.
(f) The use of any motorized vehicles, except for the
occasional use as may be necessary in conjunction with land
management consistent with the permitted uses under this
Conservation Easement.
(g) The transfer of development rights which were,
are, or may be appurtenant to the Moore Open Space Property. The
parties hereto acknowledge and agree that all development rights
appurtenant to the Moore Open Space Property are forever
extinguished by virtue of the grant of this Conservation
Easement.
(h) Subdivision of any portion of the Moore Open Space
Property.
(i) The expansion of Alpine and Nordic ski areas other
than those approved in Paragraph 4 above without the review and
approval of Grantee.
6. Grantee Approval of Unlisted but Consistent Uses an4
Practices; Notice. In the event Grantor wishes to engage in a
use or practice on the Moore Open Space Property which is not
listed above as one of the "Consistent Uses" or "Prohibited
Uses", Grantor shall send Grantee written notice of intention to
commence or undertake such activity, which notice shall describe
all material aspects of the proposed activity. Said notice (and
any other notice required or permitted hereunder) shall be sent
by registered or certified mail, return receipt requested, to the
following addresses or to such other addresses as Grantor may,
from time to time, be informed of, in writing, by Grantee:
Pitkin County Board of County Commissioners and
Pitkin County Attorney
530 East Main Street
Aspen, Colorado 81611; and,
Pitkin County Open Space and Trails Board
530 East Main Street
Aspen, Colorado 81611.
Grantee shall have thirty (30) days from the receipt of such
notice, as indicated by the registered or certified return
receipt, to review the proposed activity and to notify Grantor of
its objections thereto. Such objections, if any, shall be based
upon Grantee's reasonable opinion that the proposed activity is
inconsistent with this Conservation Easement. If possible, said
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notice shall inform Grantor of the manner in which the proposed
activity can be modified to be consistent with this Conservation
Easement.
Grantee's response to Grantor's notice, and any other notice
that may be required or permitted of Grantee hereunder, shall be
sent by registered or certified mail, return receipt requested,
to Grantor at the following addresses, or to such other addresses
as Grantee, from time to time, may be informed of, in writing, by
Grantor, its successors or assigns.
Grantor:
James E. Moore Family
Partnership, LLLP
P.O. Box 126
Woody Creek, CO 81656; and,
Copy to:
Gideon Kaufman, Esq.
Kaufman & Peterson
315 E. Hyman, #305
Aspen, CO 81611
Should Grantee fail to post its response to Grantor's notice
within thirty (30) days of the receipt of said notice (as
indicated above), the proposed activity shall automatically be
deemed consistent with the terms of this Conservation Easement,
and Grantee shall have no further right to object to the activity
identified by such notice.
Grantor shall be under no liability or obligation for any
failure in the giving of notice as required above with regard to
any activity undertaken by Grantor necessitated by virtue of
fire, flood, act of God, or other element or cause beyond the
control of Grantor.
In the event Grantor and Grantee disagree as to whether a
particular use or practice is one of the "Consistent Uses" or a
"Prohibited Uses", as defined herein, or if Grantor disagrees
with a determination by Grantee that a proposed activity is
inconsistent with this Conservation Easement, either Grantor or
Grantee may submit the dispute to such form of mediation or
arbitration, as may be mutually acceptable to Grantor and
Grantee. In the event of arbitration, the parties agree that the
decision of the arbitrator(s) shall be final and binding upon the
parties, and that the prevailing party shall recover the cost of
the conflict resolution procedure; however, each party shall pay
its own attorney's fees, if any, regardless of outcome. If
either Grantor or Grantee do not wish to submit the dispute to
mediation or arbitration, then the dispute may be resolved by
litigation in Pitkin County District Court, with the prevailing
party being entitled to recover costs and reasonable attorneys'
fees arising from such litigation.
7. Costs and Liabilities. Grantor retains all
responsibilities and shall bear all costs and liabilities of any
kind related to the ownership, operation, upkeep, and maintenance
of the Moore Open Space Property, including the maintenance of
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adequate comprehensive general liability insurance coverage.
Grantor shall add Grantee as an additional insured to such
insurance coverage, and shall deliver proof of such coverage to
Grantee at closing.
8. kiens. Grantor shall keep the Moore Open Space
Property free of any liens arising out of any work performed for,
materials furnished to, or obligations incurred by Grantor;
provided, however, that a deed of trust containing a
subordination to the terms of this Conservation Easement may be
placed on the Moore open Space Property in order to secure its
sale. The Subordination Agreement will be submitted to Grantee
for its approval, which will not be unreasonably withheld.
9. Taxes and Assessments. Grantor understands that
nothing in this Conservation Easement relieves Grantor of the
obligation to pay such real estate taxes as may be assessed from
time to time on the Moore open Space Property or on this
Conservation Easement. Grantor agrees to pay before delinquency
any and all real property taxes. Should Grantor, Grantor's
heirs, successors or assigns, fail to pay any such real property
taxes, charges, fees or assessments on the Moore Open Space
Property, Grantee may, at its sole discretion and without
obligation, pay such taxes, fees, charges or assessments in
accordance with any bill, statement or estimate procured from the
appropriate authority, and such payment shall bear interest until
paid by Grantor to Grantee at the rate of two (2) percentage
points over the prime rate of interest from time to time charged
by Norwest Bank of Denver or the maximum rate allowed by law.
10. Public Access. Public access to the Moore Open Space
Property shall only be allowed in the winter season for cross-
country skiing along established trails or roads, or in areas
delineated by Grantor for winter use, at no charge to the public.
With the exception of the entry rights granted to Grantee and the
public in this Conservation Easement,, nothing contained in this
document shall be construed as affording the public access to the
Moore Open Space Property, and Grantor retains the right to
control access to the Moore Open Space Property, and shall have
the right to enforce any prohibition of public access by all
lawful means.
11. Residual Estate. As expressly provided in Section 38-
30.5-105 of the Colorado Revised Statutes, all interests and
rights of ownership not transferred and conveyed to Grantee by
this Conservation Easement shall remain in Grantor, including the
right to engage in all uses of the Moore Open Space Property
which are not inconsistent with the Conservation Easement or
prohibited by the Conservation Easement or by law.
12. Subseauent Transfers. Grantor agrees to incorporate
the terms of this Conservation Easement in any deed or other
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legal instrument by which it divests itself of any interest in
all or a portion of the Moore Open Space Property, including,
without limitation, a leasehold interest. Grantor will provide
Grantee with notice of the names, addresses, and telephone
numbers of any transferees.
13. gold Harmles4. Grantor shall hold harmless, indemnify
and defend Grantee, volunteer citizen board members, employees,
agents and the heirs, personal representatives, successors, and
assigns of each of them (collectively "Indemnified Parties") from
and against all liabilities, penalties, costs, losses, damages,
expenses, causes of action, claims, demands or judgments,
including, without limitation, reasonable attorneys' fees,
arising from or in any way connected with: (1) injury to or the
death or 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 Moore Open Space
Property, regardless of cause, unless due solely or in part to
acts of the Indemnified Parties; (2) the presence or release of
hazardous or toxic substances on, under or about the Moore Open
Space Property, unless such release was caused by an Indemnified
Party. For the purpose of this paragraph, hazardous or toxic
substances shall mean any hazardous or toxic substance which is
regulated under any federal, state or local law.
14. Amendment. The fact that any use of the Moore Open
Space Property that is expressly prohibited by this Conservation
Easement, or any other use as determined to be inconsistent with
the purpose of this Conservation Easement may become more
economically valuable than consistent uses allowed by this
Conservation Easement, or that neighboring properties may in the
future be put entirely to uses that are not permitted hereunder,
has been considered by the Grantor in granting this Conservation
Easement. Grantor and Grantee recognize that circumstances may
arise under which an amendment to or modification of this
Conservation Easement would be appropriate. Accordingly, Grantor
and Grantee may jointly amend this Conservation Easement,
provided that no amendment shall be allowed that will affect the
qualification of this Conservation Easement under Section 38-
30.5-101, At sec., Colorado Revised Statutes, nor its
qualification as a conservation easement for purposes of the
Internal Revenue Code, and any amendment shall be consistent with
the conservation purposes of this Conservation Easement, and
shall not affect its perpetual duration. Any such amendment
shall be recorded in the official records of Pitkin County,
Colorado. Although this paragraph recognizes that an amendment
to this Conservation Easement may be appropriate in certain
circumstances, the terms of this paragraph do not create an
obligation on the part of either Grantor or Grantee to agree to
an amendment requested by the other party.
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15. $atinguishment. If a subsequent unexpected change in
conditions surrounding the Moore Open Space Property makes
impossible or impractical the continued use of all or part of the
Moore Open Space Property for conservation purposes, the
Conservation Easement can nonetheless be treated as protected in
perpetuity if the restrictions are terminated or extinguished by
a judicial proceeding in a court of competent jurisdiction, and
all of Grantee's proceeds (as determined in Treasury Regulation
Section 1.170A-14(g)(6)(ii)) from a subsequent sale or exchange
of all or part of the Moore Open Space Property are used by the
Grantee in a manner consistent with the conservation purposes of
the Conservation Easement described herein.
16. $nforcement and Waiver. Enforcement of the terms and
provisions of this Conservation Easement shall be at the
discretion of Grantee. Any forbearance on behalf of Grantee to
exercise its rights hereunder in the event of any breach by
Grantor shall not be deemed or construed to be a waiver of
Grantee's rights hereunder in the event of any subsequent breach.
In the event of forbearance on behalf of Grantee to exercise its
rights hereunder, Grantor waives any defense of laches, estoppel
or prescription.
17. Enforcement of Rights.
(a) In the event of a violation by Grantor or a third
party of any term, condition, covenant, or restriction contained
in this Conservation Easement, Grantee shall give the Grantor or
such third party written notice of such violation, describing the
violation and making demand that the violation cease and be
remedied. If, after ten (10) days following receipt of such
notice (as indicated by the registered or certified mail return
receipt), the violation has not been corrected or the prohibited
use terminated, and any damage to the Moore Open Space Property
remedied and restored, or steps taken to ensure the swift
restoration of the Moore Open Space Property; or, alternatively,
if a written explanation to Grantee of the reason why the alleged
violation should be permitted is not delivered to Grantee within
such ten (10) day period, the Grantee may enjoin by temporary or
permanent injunction such violation and/or institute a suit for
damages for breach of covenant, or may take such other action as
it deems necessary to insure compliance with the terms,
conditions, covenants, and purposes of this Conservation
Easement; provided, however, that any failure to so act by the
Grantee shall not be deemed to be a waiver or a forfeiture of the
right to enforce any term, condition, covenant, or purpose of
this Conservation Easement in the future.
(b) In the event of a violation by Grantee or a third
party of any term, condition, covenant, or restriction contained
in this Conservation Easement, Grantor shall give the Grantee or
such third party written notice of such violation, describing the
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violation and making demand that the violation cease and be
remedied. If, after ten (10) days following receipt of such
notice (as indicated by the registered or certified mail return
receipt), the violation has not been corrected or the prohibited
use terminated, and any damage to the Moore Open Space Property
remedied and restored, or steps taken to ensure the swift
restoration of the Moore Open Space Property; or, alternatively,
if a written explanation to Grantor of the reason why the alleged
violation should be permitted is not delivered to Grantor within
such ten (10) day period, the Grantor may enjoin by temporary or
permanent injunction such violation and/or institute a suit for
damages for breach of covenant, or may take such other action as
it deems necessary to insure compliance with the terms,
conditions, covenants, and purposes of this Conservation
Easement; provided, however, that any failure to so act by the
Grantor shall not be deemed to be a waiver or a forfeiture of the
right to enforce any term, condition, covenant, or purpose of
this Conservation Easement in the future.
(c) Grantor further intends that should any prohibited
use be undertaken on the Moore Open Space Property, the Grantee
shall have the right to cause the restoration of that portion of
the Moore Open space Property affected by such activity to the
condition that existed prior to the undertaking of such
prohibited activity. The cost of such restoration shall be borne
by Grantor, its successors and assigns, up to the sum of
$400,000.00. The $400,000.00 limit shall be adjusted annually on
the anniversary of the date this Conservation Easement was
recorded in the office of the Clerk and Recorder of Pitkin
County, Colorado, in accordance with changes in the U.S.
Department of Labor's Bureau of Labor Statistics Consumer Price
Index All Urban Consumers, U.S. City Average, All Items. The
$400,000.00 limit shall apply to each judicially determined or
mutually agreed upon violation pursuant to this Paragraph 17.
Notwithstanding the foregoing, however, in the event a party
other than Grantor, its successors and assigns, including the
Homeowners' Association, individual Lot Owners, and their
respective Guests (the term "Guest" is defined as any owner or
lessee of a Lot, and any family member, customer, agent,
employee, independent contractor, guest, licensee, or invitee),
should undertake activities which result in the degradation,
damage, or destruction of all or a portion of the Conservation
Values of the Moore Open Space Property, Grantor, and Grantor's
successors and assigns, shall not be liable for restoration of
the Moore Open Space Property so long as Grantor demonstrates it
has used reasonable good faith efforts to locate and compel such
third party trespassers to restore the Moore Open Space Property.
In cases of prohibited uses described in this Paragraph 17,
Grantor, its successors and assigns, agree that Grantor shall not
use the fact that such damage to the Conservation Values is not
required to be restored to extinguish or terminate all or a part
of the Conservation Easement under the provisions of Paragraph 15
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above, or otherwise. Nothing contained herein shall be construed
to preclude Grantor from exhausting legal remedies in determining
whether the proposed activity to which the Grantee has objected
is consistent with this Conservation Easement.
(d) Any costs incurred by Grantee in enforcing the
terms of this Conservation Easement against Grantor, including,
without limitation, costs of suit and reasonable attorneys' fees
(even in the event that the Grantee secures redress without a
completed judicial proceeding), and any costs of restoration
necessitated by violation of the terms of this Conservation
Easement within the limitations contained herein, actually
expended by the Grantee, shall be repaid immediately to Grantee
by Grantor, except in the case of restoration costs required by
acts described in Paragraph 17(c) above. If Grantor prevails in
any action to enforce the terms of this Conservation Easement,
the costs of suit, including without limitation, reasonable
attorneys' fees of Grantor, shall be paid by Grantee.
(e) Nothing contained in this Conservation Easement
shall be construed to entitle Grantee to bring any action against
Grantor for any injury to or change in the Moore Open Space
Property resulting from causes beyond the control of Grantor,
including, without limitation, fire, flood, storm, and earth
movement, or from any prudent or good faith action taken by
Grantor under emergency conditions to prevent, abate, or mitigate
significant injury to the Moore Open Space Property resulting
from such causes.
(f) Notwithstanding any other provision hereof to the
contrary, upon a transfer to a third party of Grantor's interest
in the Moore Open Space Property, Grantor's rights and
obligations under this Conservation Easement shall automatically
pass to said third party, and Grantor shall have no further
rights or responsibilities hereunder, except that liability for
acts or omissions occurring prior to transfer shall survive
transfer.
(g) in the event that Grantor is required to bring an
action to enforce Grantor's rights under this Agreement, and
Grantor prevails in any such action, Grantor will be entitled to,
without limitation, costs of suit and reasonable attorneys' fees.
18. Assignment.
(a) Grantee may, with Grantor's prior written consent,
not to be unreasonably withheld, assign this Conservation
Easement to a Qualified Organization (as defined below), which
organization was created at least two (2) years prior to receipt
by it of the Conservation Easement, provided that (1) in the
judgment of Grantee, the assignee organization has the ability,
experience, interest and resources to carry out the conservation
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objectives expressed in this Conservation Easement; and, (2) the
assignee organization agrees in writing to abido by and to carry
out the intentions of Grantor and Grantee as expressed in this
Conservation Easement. For this purpose, the term "Qualified
Organization" means any one of the following: (i) a governmental
unit described in Section 170(b)(1)(A)(v) of the Internal Revenue
Code of 1986, as amended ("Code"); (ii) an organization described
in Code Section 170(b)(1)(A)(vi); (iii) a charitable organization
described in Code Section 501(c)(3) that meets the public support
test of Code Section 509(a)(2); or, (iv) a charitable
organization described in Code Section 501(c)(3) that meets the
requirements of Code Section 509(a)(3), and is controlled by an
organization described in (I), (ii), or (iii) above.
(b) The Grantor may convey and (by Deed or otherwise)
assign any or all of its interest in the Moore Open Space
Property to any party or parties, provided such conveyance and
assignment is subject to the terms and conditions of this
Agreement, and thereafter Grantor will be released from all
liability connected with the Moore Open Space Property.
19. Binding Effect: Rule Against Perpetuities;
Beverability. This Conservation Easement shall run with the
title to the Moore Open Space Property, and shall be binding upon
and inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and
assigns in perpetuity. If any term or provision of this
Conservation Easement would otherwise violate the rule against
perpetuities or the rule restricting restraints on alienation,
such term or provision shall automatically expire and be of no
further force or effect twenty (20) years following the death of
the last to die of Gideon Kaufman and John M. Ely, and their now
living children. If any provision of this Conservation Easement
or the application thereof to any person or circumstance is found
to be invalid, the remainder of the provisions hereof and the
application of such provision to persons or circumstances other
than those to which it is found to be invalid, shall not be
affected thereby.
20. Interpretation. The provisions of this Conservation
Easement shall be liberally construed to effectuate their purpose
of preserving and protecting the Conservation Values of the Moore
open Space Property. No remedy or election given by any
provision in this Conservation Easement shall be deemed exclusive
unless so indicated, but it shall, wherever possible, be
cumulative with all other remedies at law or in equity. The
parties acknowledge that each party and its counsel have reviewed
and revised this Conservation Easement and that no rule of
construction that ambiguities are to be resolved against the
drafting party shall be employed in the interpretation of this
Conservation Easement. In the event of any conflict between the
provisions of this Conservation Easement and the provisions of
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APPROVED AS TO FORM:
RECOMMENDED FOR APPROVAL:
JAIAq
e Ellen Hbmilton, Chief Executive Officer,
n Space and Trails
any use and zoning restrictions of the State of Colorado, Pitkin
County, or any other governmental entity with jurisdiction, the
more restrictive provisions shall apply. This Easement shall be
interpreted in accordance with the laws of the State of Colorado.
IN WITNESS WHEREOF, Grantor and Grantee have executed this
Conservation Easement as of the day and year first above written.
GRANTEE:
BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
By
e Jones Dorothea Farris, hairperson
D-s%uty Clerk a , • Recorder Date: a- jpt- yr
GER APPjt9'JA�
County Manager
GRANTOR:
JAMES E. MOORE FAMILY PARTNERSHIP LLLP, a
Colorado limited liability limited partnership
By t2A.c -.rcw Q ,
Thomas A. Moore, General Partner
STATE OF COLORADO
COUNTY OF PITKIN
eye The fore
"day of
General Partner
Colorado limite
ss.
g .ypgtrument was acknowledged before me this
, 1998, by Thomas A. Moore, as
f JAMES E. MOORE FAMILY PARTNERSHIP LLLP, a
liability limited partnership.
Witness my hand and offici 1 eal.
My commission expires: .S poo
;NICE
L.JN .
JANICf JOHNSON
NOTARY PUBLIC
STATE OF COLORADO
-.rrr•r.
My Commss'ofi E xpirc 4/15,- _000
(ADDITIONAL NOTARY ACKNOWLEDGMENT ON NEXT PAGE)
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STATE OF COLORADO )
ss.
COUNTY OF PITKIN )
The fore ing i strument was acknowledged before me this
day of Pc
W5V, 1998, by Dorothea Farris, as
C airperson oh� BOARD OF COUNTY COMMISSIONERS OF PITKIN
COUNTY, COLORADO.
Witness my hand and offi9i
My commission expires:
C:\clients\Moore\conservation easement -newt
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bIttINIMS
SURVIVORS
370) 945-1004
'AX (970) 945-5948
sa°een
eeeaeueer R
118 West 6th, Suite 20C
Glenwood Springs, CO 81601
EXHIBIT "A"
"MOORE OPEN SPACE PROPERTY"
Moore - Open Space 7
December 15, 1997
A parcel of land situated in the SI/2NE1/4, NI/2SE1/4 of Section 14, Township 10 South, Range 85 West
of the 0 P.M. said parcel being more particularly described as follows:
Beginning at the CS 1/16 of said Section 14, with all bearings being relative to a bearing of
N 00' 15'39" W between the S 1/4 comer and the C 1/4 corner of said Section 14; thence
N 00' 15'39' W 1078.09 feet along the westerly line of the NW 1/4SE1/4 of said Section 14: thence N
89'50'28' E 319.39 feet; thence N 53 °02'57' E 827,74 feet; thence N 85 °38' 16" E 383.71 feet; thence N
85' 19'31" E 212.88 feet; thence S 86'42'51" E 1057.91 feet to the easterly line of the SE1/4NE1/4 of said
Section 14; thence S 00°03'431' W 229.37 feet along the easterly Tine of said Section 14 to the E 1/4 corner;
thence S 00' 15'53' W 1361.77 feet to the
S 1/16 comer of said Section 14; thence N 89°07'53' W 1310.90 feet to the SE 1/16 corner of said Section
14; dunce N 89°07'53" W 1310.90 feet to the CS 1/16 point of beginning, said parcel contains 89301
acres more or less.
93205B SE
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