HomeMy WebLinkAboutbocc.con.161.2010RECEPTIIJN#: 5d'0604, 06616J2010 at
01:25:01 R~/t,
~~F ~3, R$~.~i3 Doc Ca~le OftDIN~1NCE
Jaraice K. Vos ~audilt, Piticin County, CO
ORDINANCE OF THE BOARD OF COl
OF PITKIN COUNTY, COLORADO
ACCEPTING ADMINISTRATIVE AND EMERGENCY ACCESS EASEMENT FROM
WAYNE POULSEN AND JOHN MATTHEWS AND AUTHORIZING AN AGREEMENT
WTTH WAYNE POULSEN
ORDINANCE NO. ~-2010
~ONTRAC'l~~f„~,/__~1~0
RECITALS
l'A~~~~d )
i~~• ~o~a
1. The Pitkin County Open Space and Trails Board of Trustees (OSTB) is charged with the (~~~~~
responsibility of acquiring open space and trails, and
2. On October 28, 2009, The Board of County Commissioners (BOCC) authorized the
expenditure of Open Space funds for the acquisition of 54 acres in Little Annie Basin on Aspen
Mountain from Stirling Cooper. Purchase of the Cooper Open Space was completed on
November 13, 2Q09, and
3. VVayne Poulsen owns a property described as the Gem Lode Mining Claim, USMS# 3284,
Highlands Mining District, that is adjacent to the Cooper Open Space, and
4. John Matthews owns a property described as the Globe Lode Mining Claim, USMS# 6987,
Highlands Mining District, that is in the immediate vicinity of the Cooper Open Space, and
5. Mr. Poulsen and Mr. Matthews desire to grant the County administrative and emergency
access across their properties to the Cooper Open Space, and
6. Mr. Poulsen also desires to enter into an agreement with the Counry, committing to pay the
Open Space and Trails Fund a voluntary transfer fee upon the sale of his Property by himself or his
family or heirs, of 2.5% of the sale proceeds, so Iong as the Open Space and Trails program exists.
7. The OSTB recommends to the BOCC the acceptance of the Administrative and Emergency
Access Easement from Mr. Poulsen and Mr. Matthews. The OSTB further recommends to the
BOCC the approval of an Agreement with Mr. Poulsen, committing the payment of funds to the
Open Space Funds upon sale of his Property by himself, his family or his heirs.
NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Pitkin
County, Colorado that:
1. The Board accepts the conveyance of an Administrative and Emergency Access Easement
from Wayne Poulsen and John Matthews, dated November 27, 2009.
2. The Board Chair is authorized to execute and Agreement Regarding Portion of Sales
Proceeds Payable to Pitkin County Open Space Fund with Wayne Poulsen, dated May 15, 2010.
i'~,~t~l>;e~~i [~ tt~~ t~iunt tu3d .~~;rcenteni.
i1PjlhilllC;C -~.~Ot(i
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The BOCC finds that adoption of this ordinance is necessary for the immediate preservation of
the public health, safety and welfare of the citizens of Pitkin County and therefore declares this
ordinance and legislation to be effective immediately.
INTRODUCED, FIRST READ, AND APPROVED ON THE 26th DAY OF MAY, 2010.
NOTICE OF PUBLIC HEAR~NG PUBLISHED IN THE ASPEN TIMES
WEEKLY ON THE 3~DAY OF, ~(~ ~_ 2010.
APPROVED UPON SECOND READING AND PUBLIC HEARING ON THE 9th
DAY OF JUNE, 2010.
PUBLISHED AFTER ADOPTIO IN THE WEEKEND EDITION OF THE
ASPEN TIMES ON THE °!e J~' DAY OF _, 2010.
A'I"T~EST:
~
,
J ette Jones
puty Clerk
APPROVED AS.,'~.Q,.~~:__..,~
~~
~ =-~,-~".~._.___~.__._..._
John Ely _
Count~e~~~~
,
~ 1~%1~
Dale Will, Director
Open Space and Trails Program
f'~~:ai>er~ (~asruaent <r~~d Ar~'~4mei~i
t>r~dir3ancc 1(}~rl
BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
George New an
Chair ~
Date: ~ %~ G J
( ~~
Hilary F t her
County ager
~
THIS ADMINISTRATIVE AND EMERGENCY ACCESS EASEMENT AGREEMENT
("AgraemenP') is made and entered into as of this ~.~7 day of November, 2009, by and between
Wayne Poulsen ("Poulsen"), P.O. Box 1506, Aspen, CO 81612 and John Matkhe.ws
("Matthews"), 0250 Lower Hwr~icane Road, Aspen, CO 81b1 ~ who shall her~inafter jointly bs
referenced as "CYxantors" and the Board of County Commissioners of Pitkin County, a local body
palitic, 53.U E. Main Street, Aspen, CO 81611 ("Grantee") wherein Grantars and Grrante~ shall
sometimes be referred to as "the Parties" hereto.
RECITALS
1: :.~. Poulsen is the xecord owner of certain real property located in Pitkin County,
Colorada d~scrib~d as The Gem Lode Mining Claim, USMS #3284, Highlauds Mining Di.stxict.
("Poulsen Pro~.erty"); and
2. Matthews is #he record owner of certain r~al property located in Pitkin Couniy,
Colorada, desc~ib~d as The .Globe .~,ode Mining Claim, USM$ #6987, High~ands Mining District.
~«Matthews Property'~; and . . ~ :
. .... .
,.` . 3. `:.' The ~oulsen Froperty ~.nd.the. Matthews.ProPert3' lie. adjacent to certain lands. ...
owned by. Gxant~e, known as t~e Sterling Cooper, Jr. Open Sp~ce Parce~ .("Benefitted I:ands".),
aansisting of a~proximately 53 acres of land sauth of wha~ is comxnonly. ~cnown as. Hurricat~e
~rulch:above Castle Cte~k, A,n.existin-g priyate, imixnpmyed.drivevyay ~cces.s.ixaverses the
Nla~tthews Property. and Pouisen P~perly, as depicted. on Exhibit A, aLtached hereto.; and
4. ..`.. G•rantors desire by this Agreement to. establish and grant to. Grantee an
administrative and emergency. access easement over the Matthews and Poulsen Properties for tb.e
benefit solely af the Benefitted T~ands, which access would fallow the existing private driveway
through the Matthews and Poulsen Properties as depicted on Exhibit A; and
5. Gran#e,e desires by.this Agreement (a) to accept said Admaw.isirative aiad
Emergency Access Easement subject to the restrictions set foxth her~in, and.(b) to assume certain .
responsibi~ities in connection therewith. .
. AGREEMENT ~
NOW, THEREFORE, for and in cansideration of.the mutual coven~nts and agreements
set forth k~erein, and for other goqd and valuable considera#ions, the receipt. and st~ciency of.
wl~i~h are hereby ~cknowledged, Crrantpr and Grantee agree as foilows: :.. '
1. Gran# of Easement Grantors herebY grant, transfer and convey unto Grantee, its
successors and assigns a ten (10) foot wide non-exclusive, peipetual access easement solely for
adminishative and emergency access purposes only in connection with ~"irantee's owne~rship,
maintenance and operation of the Benefitted I.ands. Said easement sha1l be located over and
1
Associated with Ordinance 022-2009
across an e~sting private driveway maintained by Crrantors, as depicted on Exhibit A, atta.ched
hereto. The terms "administrative access" and "emergency access" shall for all purposes in
relation to this Agreement be defined as follows:
A. Administra.tive Access. The administrative access shall be solely for the use
of authorized agents and employees of Crrantee and its departments and
agencies in the course of their employment in relation to the operation and
maintenance of the Benefitted Lands during daylight hours.
B. Emergency Access. Emergency access shall be solely for the use of official
emergency response personnel, velucles and equipment acting in response to
an emergency siiuation existing on the Benefitted Lands.
2. Easement Use Limita.tion. The easement granted by this Agreement is for access
only along the designated easement alignment. No velucles or equipment of any kind or nature
may either park upon or depart from the designated easement alignment across Grantor's
properties at any ti.me whatsoever.
3. Easement Solelv for Benefit of Open Space. The easement granted by this
Agreement is for the use of Grantee only in connection with its maintenance and operation of the
Benefitted Lands as a public open space parcel. In the event the Benefitted Lands pass out of
public awnerslup or cease to function as public Open Space, this Agreement and the easement
granted herein shall automatically terminate and be of no further force or effect.
4. No Right to Mai.ntain or Improve. Grantee's access rights hereunder are granted
upon and across the private driveway as it currently exists and is maintained from time to time
by Grantors. Grantee shall have no right to mai.ntain or improve said driveway at any time or to
any specific standard, nor sha11 Grantors have any duty or obligation to maintain or improve said
driveway for any purpose and Grantee shall not have any right to require such action by
Grrantors.
5. Grantee's Obligation to Indexnnifv and Insure. Grantee agrees hereby to add
Grantors (their successors and assigns in ownership of the Matthews Property and Poulsen
Property, or any part thereo fl 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 Access Easement granted hereby. Such
insurance sha11 be carried in asnounts 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 sha11 provide Grantors and their
successors and assigns with thirly (30) days advance written notice prior to cancellation or
termination. Grantee sha11, upon written request_therefor from Grantors or any successor or
assign, provide a Certificate of Insurance as verification of compliance with these requirements.
6. Attorneys' Fees. In the event the interpretation or enforcement of this Agreement
should ever become the subject of litigation between Crrantors (or their successors or assigns in
ownership of the Poulsen or Matthews Properties, or any part thereo fl and Grantee, the
2
a i ~~ ~
~,~~ od 9
prevailing party in any such action sha11 be entitled to an award of its reasonable costs, including
attorneys' fees incurred in connection therewith,
7. Bindin E~ ffect. This Agreement and the easement granted hereby shall be
binding upon and inure to the benefit of the Parties hereto and to their respective heirs, personal
representatives, successors and assigr_~,s fo~'ev~r, i~cluding all fu~u~'e record own~r~ o~the
underlying real property traversed by the 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 access easement as depict~d on Exhibxt A hereto. This Agreement may only be amended
by a writi.ng signed by Grantee and by the then-record owners of the Matthews and Poulsen
Properties.
IN WITNESS WHEREOF, the Parties have hereunto set their hands and seals as of the
day and year first above written.
GRANTORS:
Wa e P ulsen
GRANTEE:
The Board of County Commissioners
Of Pitkin County, Colorado, a local
Body politic
By- ~ -
Patti Kay-Clapper, Chair
3
\
Jo Matthews
~
5
a,e~ - vaa -~
STATE OF COLORt~DO )
) ss.
COLJNTY OF PITKIN )
The foregaing instrument was acknowledged before me this ~_ day of November,
2009 by Wayne Poulsen.
Witness my hand and official sea1.
No Public
~~
My commission expires: ~'~~~~~a NICOLE BROWN
NOTARY PUBLIC
STA~L OF COLORADO
STATE OF COLORADO ~ My Commission Expires 05/29I2012
) ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this ~~ day of November,
2009 by John Maithews.
Witness my hand and official sea1.
~
Notaz~ Public
My commission expires: o~ja~l~0~7
STATE OF COLORADO
COUNTY OF PITKIN
SS.
NICOLE BROWN
NOTARY PU~LIC
STATE OF COLORADO
My Commission Expires 05/29/2012
~ k~t~2 L'-~ Y~.~..b~C- N
The foregoing instrument was acknowledged before me this ~3 day of~e~en~er,
2009 by Patti Kay-Clapper, C air of the Board of County Commissioners of Pitkin County,
Colorado and attested to by ~1.-J.~ ~vk.~s •
Witness my hand and official sea1. '
No Pub ic
1~~~,~a~c~t t i i iM~'.
t~' ~'~A .
My commission expi~es: o~~. yr' ~'%.~
~;~ ~a;~o~
~~'~.-~' o! d ~' ~ ~ ?° =
~ ~^ ~ ~a~~
~ ~n ~~~ ~.
~.~ O ~, .'~
~a~~ ~~AF~Q L~~~'~\
sa~~~~rfiiit~ (.P
~2016
O~e~ ~~a -~00 j
~~~ ~~
,c~2~,~) ~ ~zLy~
-. ~ ~L6 5L~6~
• • •' Q W 0086-~
r. _
_ . ~ M ' / i ~ ~/X _.,~2$ • ~=~ \
. / u ~' ~--! a 6 ~ , ~
( . ~s s
NO00'69b ~ ~~ ~ 9L 6 \ .
~ ,~ _ - - 00007 ~` - !' ~
~ ~ ~ ~ ! ~Z ~~.% •
~ :.
{ .' ---450~ - •V ,,
1- ,oL ~
'L I ;
~ p- - .-~- ``~O~ 3 '~ z
~ t , m ~arsi
~ ~ ~ ~ 1 ~ ~ ~ ~ t io~v ~
~ ~ ~ . ~ ~ ~
~. ~ Z ~ ~
z
v ir ~f d s ,i ~ ` ,
~ ~-
'~C • ~ ~ d. N 1 9 ~
I .S i No0 . ~ I ~
, _ ~ m ~ i ~j ~
~ .:
~~,_ ~ ' ~~ . / ~ Q ~
NI ~
. _ ~ / ~y2 ~ g6
./ .~/'. ~ .
.. -' - ~ - r: coo'cL. - --~_- i , t . / ~~
~ 0- y~ ~ ~~ w
6 . ~ / ~ ~
~ ~ ~ / ~~~.X+O
~ f.
:~~~i'~ ~ \
1 ' ~y / r n
i ~~~.r~
. ~ i'K:;.: r_/
~ a ~66 ~ ~ _ S3.3b
~~ , ~• 1 \
. po 'f~
(~ , ~l~ ~~,
~ ~' / l~~ ~ ' ~
a
N ..i I
~ i
N 000'tLb '
! ~
~
. % I £ ; _
~
~,~~ ~S'L!
~~100/'-~~-\~~1,~.4zss\ .
_~-_~ ~
.~.~:,~
oaa-,
I `
~ ~
~
~9
~,.~' ~ I ~ f ~
5/21/2010
Agreement Regarding Portion of Sales Proceeds Payable to Pitkin County
Open Space Fund
(Poulsen - Pitkin County)
THIS AGREEMENT REGARDING PORTION FO SALES PROCEEDS TO PITKIN
COUNTYOPENSPACEFUND (the "Agreement") is entered into this 2~day of
~..~_, 2010, by and between Wayne Poulsen (facsimile number; 970-
~j~, •~v ("Poulsen") and the Board of County Commissioners of Pitkin County
(facsimile number: 970-920-5198) (the "County"). The following exhibits are
attached to this Agreement:
Exhibit A- Legal Description of Cooper Claims
RECITALS:
A. Poulsen is the record owner of certain real property located in Pitkin County,
Colorado described as The Gem Lode Mining Claim, USMS #3284, Highlands
Mining District (the "Property") and,
B. Pitkin County recognizes that Poulsen has had an active interest and participation
in securing the property known as the Cooper Claims from development and has
assisted in their purchase by Pitkin County Open Space and Trails. Poulsen has
agreed to make, as his contribution to this transaction, a pledge of 2.5% of the
receipt of any future sale of his property, by himself or his ~ieirs, to the Pitkin
County Open Space program. This transfer fee shall become due only upon the
sale or transfer of the said Gem Lode out of the ownership of Poulsen or his heirs,
defined as his lineal family descendents, and payment shall be made once only
and shall not extend to any subsequent sale or transaction. Upon the occasion of
such a sale and payment of the transfer fee Pitkin County Open Space shall file a
record of Acknowledgement of Payment and Cancellation of Agreement.
C. Poulsen makes this pledge and payment of this fee as a contribution for the
purposes and goals of the Pitkin County Open Space and Trails program. If the
Open Space program no longer exists at the time of a sale of the Gem Lode by
Poulsen or his heirs then this pledge shall be null and void.
AGREEMENT:
NOW, THEREFORE, for and iri 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, Poulsen and the County agree as follows:
Pitkin County-Poulsen Agreement ~
5/21/2010
If Poulsen, or his heirs, as defined in Recital B, sell the Property, a 2.5% portion
of the purchase price will be paid to the Pitkin County Open Space and Trails
Fund, and shall be payable at closing.
2. Upon entering into any contract for sale of the Properly, Poulsen will provide
notice to the County at least 30 days prior to the closing of any sale subject to this
agreement.
3. Contingency Regarding Open Space Use of Cooper Claims and County
Maintenance of the Open Space and Trails Fund: The obligations of Poulsen
hereunder are specifically contingent on a.) the County's continued ownership of
the Cooper Claims and continued use thereof to outdoor recreation, scenic
protection, protection of historic artifacts and enhancement of wildlife habitat, and
b.) the continued existence of the Open Space and Trails Fund by Pitkin County
pursuant to Article 13 of the Pitkin County Home Rule Charter, as may be
amended from time to time. Furthermore, nothing in this Agreement shall apply
to any transfer of the Property to Poulsen's immediate family.
4. County's Remedy: The obligation provided in Paragraph One represents a
covenant running with the land obligating all future owners until satisfied and that
the amount then owing constitutes a lien on the Property for the benefit of the
County which may be foreclose at the election of the County.
5. NOTICES. All notices required or permitted hereunder will be deemed to have
been delivered only upon actual delivery thereo£ All notices required or permitted
hereunder shall be given by hand delivery, or sent by telecopier, or sent by Federal
Express or other courier for delivery at the soonest possible time offered by such
courier, directed as follows:
If to Poulsen:
Wayne Poulsen
PO Box 1506
Aspen, CO 81612
with a copy to:
Timothy E. Whitsitt
Whitsitt & Gross, P.C.
320 Main Street, Suite 200
Carbondale, CO 81623
If to Countv:
Pitkin County Board of County Commissioners
Attn. Dale Will, Director
Pitkin County Open Space and Trails
Pitkin County-Poulsen Agreement /~
7
5/21/2010
530 E. Main St.
Aspen, CO 81611
Fax: 970 920-5198
With a copy to:
John Ely, County Attorney
530 E. Main St.
Aspen, CO 81611
Fax: 970 920-5198
6. MISCELLANEOUS.
6.1 Binding~Effect. The terms and conditions of this Agreement shall be binding
upon and shall inure to the benefit of the parties' heirs, executors, administrators,
successors and assigns.
6.2 Exhibits. The exhibits hereto constitute an integral part of this Agreement
and aze hereby incorporated herein.
6.3 Counterparts: Facsimile Si natures. This Agreement may be executed in
counterparts, all of which shall constitute one agreement which shall be binding
on all of the parties, notwithstanding that all of the parties are not signatories to
the original or the same counterpart. Signatures may be evidenced by facsimile
transmission and at the request of any party documents with original signatures
shall be provided to the other party.
6.4 Severabilitv. If any provision of this Agreement shall be held invalid, the
other provisions hereof shall not be affected thereby and shall remain in full force
and effect.
6.5 Entire A~reement. This Agreement represents the entire agreement of the
parties and may not be amended except by a writing signed by each party thereto.
6.6 Authoritv. Each party to this Agreement warrants to the other that the
respective signatories have full right and authority to enter into and consummate
this Agreement and all related documents.
6.7 Merger. The obligations, covenants, representations, warranties and remedies
set forth in this Agreement shall not merge with transfer of title but shall remain
in effect after the parties' obligations hereunder are otherwise fulfilled.
6.8 Further Actions. Each party shall execute and deliver or cause to be executed
and delivered any and all instruments reasonably required to convey the easements
to County and to vest in each party all rights, interests and benefits intended to be
conferred by this Agreement.
6.9 Governin~ Law. This Agreement shali be governed by and construed in
accordance with the laws of the State of Colorado.
6.10 Recordin~. This Agreement may be recorded in the Official Records of
Pitkin County-Poulsen Agreement /~
5/21 /2010
Pitkin County to provide notice to any potential buyer of the Property regarding
the obligations created hereunder.
6.11 Attorneys' fees. In the event of any action for breach of, to enforce the
provisions of, or otherwise involving this Agreement, the court in such action
shall award a reasonable sum as attorneys' fees to the party who, in light of the
issues litigated and the court's decision on those issues, was the substantially
prevailing party in the action. If a party voluntarily dismisses an action, a
reasonable sum as attorneys' fees shall be awarded to the other party.
7. SATURDAYS, SUNDAYS, HOLIDAYS. If the final date of any time period of
limitation set out in any provision of this agreement falls on a Saturday, Sunday or a legal
holiday under the laws of the State of Colorado, then the time of such period shall be
extended to the next day which is not a Saturday, Sunday or legal holiday.
8. EFFECTIVE DATE. The Effective Date of this Agreement shall be the last date
signed by either party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
By:_
Wayne
STATE OF COLORADO )
).ss.
COUNTY OF PITKIN )
"~
The foregoing instrument was acknowledged before me this Zs day of
, 2010, by Wayne Poulsen
Witness my hand and~official seal.
~~ai~~ ~
My commission expires: ~~~
```~~11111~11///~~'' ~ .
```~~ ~~4e,.....:9~~~ ~~~~ N Public
a ~•• • : ~ i
~ ~ ~T~~, ; •
_ ~
~ ~ ~.o ; ~-
.. ~ .
,. 5G . ~,
w ~ ; +
r . ~
p ,~, ti ~ ``~
..~,~~r~ ~ o ; ~o~ O,, ```
,'.r ••~ b~ `~
~
Pitkin County-Poulsen Agreement
(~
5/21/2010
COUNTY
By! y~,~`~
George Newm , Chair
Pitkin County Board of County Commissioners
APPROVED AS TO FORM
~--~. __._.._._ =-.a.--.- ~'~ ~,•,
John Ely ,.... ~'~;;:.~ Hilary Fle her
County~A.ttd~ County 11~an ger
Dale Will, Director
Open Space and Trails Program
Pitkin County-Poulsen Agreement ~ ~
5/21/2010
EXHIBIT A
Cooper Claims Legal Description
TARIFA LODE MINING CLAIM U.S.M.S. NO. 6189, DICK LODE MINING CLAIM
U.S.M.S. NO. 6189, RUCKER LODE MINING CLAIM U.S.M.S. NO. 6189, QUIEN
SABE LODE MINING CLAIM U.S.M.S. NO. 6189, EWING LODE MINING CLAIM
U.S.M.S. NO. 61$9 AND ETCETERA LODE MINING CLAIM U.S.M.S. NO. 10616,
IN THE HIGHLANDS M1N1NG DISTRICT.
Pitkin County-Poulsen Agreement / ~
-- -
CONTRACT #~~Q
RECEPTION#; 570605, 06/16/2010 a#
o~:~~:oz ~nrt,
1 ~fi 5, R$O.i~O Doc C~de ~.AS~ME~1T
Janice K. Vos Caudiil, Pitkin ~ounty, CO
ADMINISTRATI'VE AND EMERGENCY ACCESS EASEME1~iT
THIS ADMINISTRATIVE AND EMERGENCY ACCESS EASEMENT AGREEMENT
("Agreement"} is made and entered into as of this'z.~7day of November, 20Q9, by and between
Wayne Poulsen ("Poulsen"}, P.O. ~ox 1506, Aspen, CO 81612 and John Matthews
("Matthews"), Q2S0 Lower Huriicane Road, A.spen, CO 8161 Z wha sha11 hereinai~er jointly be
referenced as "Graaltors" and the Board af County Commissioners of Pitkin County, a local body
palitic, 53q E. Main Street, Aspen, CO 81611 ("Grantee") wherein Grantars and Crrantee shall
sometimes be referred to as "ihe Parties" hereto.
RECITALS
1. Poulsen is the xecord owner of certain real preperty located in Pitkin County,
Colorado des~ribed as The G~m Lode Mining Claim, USMS #3284, Hi~h,lands Mining District.
("Poulsen Property"); and
2. Matthews is the record owner of certain real property Iocated in Pitkin Couniy,
Colorada described as The Globe ~,od~ Mining Claun, USMS #6987, Highlarids Mining District.
("Matthews Property"); and
3. The Ppulsen Properiy and #he Matthews Property lie adjacent to certaix~ lands
owned by Grantee, knawn as the Sterling Cooper, Jr. Upen Space Parcel {"Benefitted Lands"),
cansisti~g of approximately 53 acres of land sou#h of what is commonly knovvn as Hw•ritcane
Gulch.a.bove Castle Creek. An.existing private, unimpxoyed driveway access trav~rses the
Nlatthews Property and Poulsen Property, as depicted on Exhibit A, attached h~ereto; and
4. Gz~antors desiure by tlus Agreement to establi.sh and grant to Grrantee an
administrative and emergency access easement over the 1~!Iatthews and Poulsen Properties for the
benefit sotely af the Benefitted Lands, which access would foll4w the existing private driveway
through the Matthews and Poulsen Properties as depicted on Exhibit A; aan-d
5. Grantse desires by tlus Agreement (a) to accept said Administrative and
Emergency Access Easement sub~ect to the restrictions set forth herein, and (b) to assume certasn
responsibilities xn connection therewith.
AGREEMENT
NQW, THEREFORE, for and in considera#ion of the mutual covenants and agreements
set forth l~erein, and for other good and valuable considerations, the receipt and suf~ciency of
whi~h are hereby acknowledged, Grantar and Grantee agree as fallaws;
1. Grant of Basement. .~xrantors hereby grant, transfer and convey unto Grantee, its
successozs and assigns a ten (10) ~oot wide non-exclusive, perpetual access easement solely for
administrative and emergency access purposes only in connection with Crrantee's ownership,
maintenance and operatian of the Benefitted Lands. Said easement shall be located over and
Associated with Ordinance 022-2009
/ ~ I
across an existing private driveway maintained by Grantors, as depicted on E~ibit A, attached
hereto. The terms "administrative access" and "emergency access" shall for all purposes in
relation to this Agreement be defined as follows:
A. Administra.tive Access. The administrative access shall be solely for the use
of authorized agents and employees of Grantee and its departments and
agencies in the course of their employment in relation to the operation and
maintenance of the Benefitted Lands during daylight hours.
B. Emer~ency Access. Emergency access shall be solely for the use of official
emergency response personnel, vehicles and equipment acting in response to
an emergency situation existing on the Benefitted Lands.
2. Easement Use Limitation. The easement granted by this Agreement is for access
only along the designated easement alignment. No vehicles or equipment of any kind or nature
may either park upon or depart from the designated easement alignment across Grantor's
properties at any time whatsoever.
3. Easement Solely for Benefit of Open Space. The easement granted by this
Agreement is for the use of Grantee only in connection with its maintenance and operation of the
Benefitted Lands as a public open space parcel. In the event the Benefitted Lands pass out of
public ownership or cease to function as public Open Space, this Agreement and the easement
granted herein shall automatically terminate and be of no further force or effect.
4. No Ri~~it to Maintain or Improve. Grantee's access rights hereunder are granted
upon and across the private driveway as it currently exists and is maintained from time to time
by Grantors. Grantee shall have no right to maintain or improve said driveway at any time or to
any specific standard, nor sha11 Grantors have any duty or obligation to maintain or improve said
driveway for any purpose and Grantee shall not have any right to require such action by
Grantors.
5. Grantee's Obligation to Indemnifv and Insure. Grantee agrees hereby to add
Grantors (their successors and assigns in ownership of the Matthews Property and Poulsen
Property, or any part thereo~ 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 Access Easement granted hereby. 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 sha11 provide Grantors and their
successors and assigns with thirty (30) days advance written notice prior to cancellation or
termination. Grantee shall, upon written request therefor from Grantors or any successor or
assign, provide a Certificate of Insurance as verification of compliance with these requirements.
6. Attornevs' Fees. In the event the interpretation or enforcement of this Agreement
should ever become the subject of litigation between C'~rantors (or their successors or assigns in
ownership of the Poulsen or Matthews Properties, or any part thereo~ and Grantee, the
i
~~
6,~ oaa • a.~o 9
prevailing party in any such action sha11 be entitled to an award of its reasonable costs, including
attorneys' fees incurred in connection therewith.
7. Binding Effect. This Agreement and the easement granted hereby sha11 be
binding upon and inure to the benefit of the Parties hereto and to their respective heirs, personal
representa.tives, successors and assigns forever, including a11 future record owners of the
underlying real property traversed by the easement, or any part thereof. The benefits and burdens
hereof shall also run with the title to the underlying real property and a11 parts thereof traversed
k~y the access easement as depicted on Exhibit A hereto. This Agreement may only be amended
by a writing signed by Grantee and by the then-record owners of the Matthews and Poulsen
Properties.
IN WITNESS WHEREOF, the Parties have hereunto set their hands and seals as of the
day and year first above written.
GRANTORS:
-~
Wa e P ulsen
GRANTEE:
The Boazd of County Commissioners
Of Pitkin County, Colorado, a local
Body politi
By: ~i~
Patti Kay-Clapper, Chair
.
~~~
Jo Matthews
~
~~
o~"~aa^~
. ~ ..
STATE OF COLORADO )
) ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this ~_ day of November,
2009 by Wayne Poulsen.
Witness my hand and official seal.
No Public
My commission expires: es~~~ ~~~a
STATE OF COLORADO )
~ SS.
COUNTY OF PITKiN )
~~~
NICOLE BROWN
NOTARY PUBLIC
STA~'E OF COLORADO
My Commission Expires 05/29/2012
The foregoing instrument was acknowledged before me this ~ day of November,
2009 by John Matthews.
Witness my hand and official seal.
Notar~ Public
My commission expires: p5 ~'~~ I~~~7
STATE OF COLORADO
COUNTY OF PITKIN
No Pub ic
~\\\`~~~~1tT~~~ f~~~~i/
My commission expires: on:.,,ay' ~y ~iF ',~„
v / N `~ ~~ ~'
l~"~~` ~ o''~ ~y ~ ~C' ~ `
~ ' : ~ r~(,' O ~
~-,.g ~,.
±°-%'a'~. °~'AbGt ,~~`~ / (
s°~~~Tr~iio ~,
SS.
NICOLE BROWN
NOTARY PUBLIC
STA;'E OF COLORADO
My Commission Expires 05l29/2012
,~..,! ~,e- ~-.2 ~..,b.e. t--
The foregoing instrument was acknowledged before me this ~3 day of~~er,
2009 by Patti Kay-Clapper, C air of the Board of CounTy Commissioners of Pitkin County,
Colorado and attested to by ~I.-J-~¢. ~~~~s •
Witness my hand and official seal. '
o~e~ ~~a -~oo ~'
, ~ .
( ~
_ o~ oaa= ~o y
5/21/2010
Agreement Regarding Portion of Sales Proceeds Payable to Pitkin County
Open Space Fund
(Poulsen - Pitkin County)
THISAGREEMENT REGARDINC PORTION FO SALES PROCEEDS TO PITKIN
COUNTYOPENSPACEFUND (the "Agreement") is entered into this?~day of
~~_, 2010, by and between Wayne Poulsen (facsimile number; 970-
~~~ ~) ("Poulsen") and the Board of County Commissioners of Pitkin County
(facsimile number: 970-920-5198) (the "County"). The following exhibits are
attached to this Agreement:
Exhibit A- Legal Description of Cooper Claims
CONTR~4CT # • ~
RECITALS:
A. Pouisen is the record owner of certain real property located in Pitkin County,
Colorado described as The Gem Lode Mining Claim, USMS #32$4, Highlands
Mining District (the "Property") and,
B. Pitkin County recognizes that Poulsen has had an active interest and participation
in securing the property known as the Cooper Claims from development and has
assisted in their purchase by Pitkin County Open Space and Trails. Poulsen has
agreed to make, as his contribution to this transaction, a pledge of 2.5% of the
receipt of any future sale of his property, by himself or his ~eirs, to the Pitkin
County Open Space program. This transfer fee shall become due only upon the
sale or transfer of the said Gem Lode out of the ownership of Poulsen or his heirs,
defined as his lineal family descendents, and payment shall be made once only
and shall not extend to any subsequent sale or transaction. Upon the occasion of
such a sale and payment of the transfer fee Pitkin County Open Space shall file a
record of Acknowledgement of Payment and Cancellation of Agreement.
C. Poulsen makes this pledge and payment of this fee as a contribution for the
purposes and goals of the Pitkin County Open Space and Trails program. If the
Open Space program no longer exists at the time of a sale of the Gem Lode by
Poulsen or his heirs then this pledge shall be null and void.
AGREEMENT:
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
set forth herein, and for other good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, Poulsen and the County agree as follows:
RECE~TION#: 570606, 06/16/2010 at
Q1:25:03 PM,
1 flF s, R$O,OU ~oc ~ade ~I~R~EMENT
Pitkin County-Poulsen Agreement ~~~i~~ K. Vas Caudili, Pitkin +County, GO
l~
5/21/2010
1. If Poulsen, or his heirs, as defined in Recital B, sell the Properly, a 2.5% portion
of the purchase price will be paid to the Pitkin County Open Space and Trails
Fund, and shall be payable at closing.
2. Upon entering into any contract for sale of the Properiy, Poulsen will provide
notice to the County at least 30 days prior to the closing of any sale subject to this
agreement.
3. Contingency Regarding Open Space Use of Cooper Claims and County
Maintenance of the Open Space and Trails Fund: The obligations of Poulsen
hereunder are specifically contingent on a.) the County's continued ownership of
the Cooper Claims and continued use thereof to outdoor recreation, scenic
protection, protection of historic artifacts and enhancement of wildlife habitat, and
b.) the continued existence of the Open Space and Trails Fund by Pitkin County
pursuant to Article 13 of the Pitkin County Home Rule Charter, as may be
amended from time to time. Furthermore, nothing in this Agreement shall apply
to any transfer of the Property to Poulsen's immediate family.
4. County's Remedy: The obligation provided in Paragraph One represents a
covenant running with the land obligating all future owners until satisfied and that
the amount then owing constitutes a lien on the Property for the benefit of the
County which may be foreclose at the election of the County.
5. NOTICES. All notices required or permitted hereunder will be deemed to have
been delivered only upon actual delivery thereof. All notices required or permitted
hereunder shall be given by hand delivery, or sent by telecopier, or sent by Federal
Express or other courier for delivery at the soonest possible time offered by such
courier, directed as follows:
If to Poulsen:
Wayne Poulsen
PO Box 1506
Aspen, CO 81612
with a copy to:
Timothy E. Whitsitt
Whitsitt & Gross, P.C.
320 Main Street, Suite 200
Carbondale, CO 81623
If to Countv:
Pitkin County Board of County Commissioners
Attn. Dale Will, Director
Pitkin County Open Space and Trails
Pitkin County-Poulsen Agreement ~
~
5/21/2010
530 E. Main St.
Aspen, CO 81611
Fax: 970 920-5198
With a copy to:
John Ely, County Attorney
530 E. Main St.
Aspen, CO 81611
Fax: 970 920-5198
6. MISCELLANEOUS.
6.1 Bindin Eg ffect. The terms and conditions of this Agreement shall be binding
upon and shall inure to the benefit of the parties' heirs, executors, administrators,
successors and assigns.
6.2 Exhibits. The exhibits hereto constitute an integral part of this Agreement
and are hereby incorporated herein.
6.3 Counterparts; Facsimile Si~natures. This Agreement may be executed in
counterparts, all of which shall constitute one agreement which shall be binding
on all of the parties, notwithstanding that all of the parties are not signatories to
the original or the same counterpart. Signatures may be evidenced by facsimile
transmission and at the request of any party documents with original signatures
shall be provided to the other pariy.
6.4 Severabilitv. If any provision of this Agreement shall be held invalid, the
other provisions hereof shall not be affected thereby and shall remain in full force
and effect.
6.5 Entire A~reement. This Agreement represents the entire agreement of the
parties and may not be amended except by a writing signed by each party thereto.
6.6 Authoritv. Each party to this Agreement warrants to the other that the
respective signatories have full right and authority to enter into and consummate
this Agreement and all related documents.
6.7 Mer~er. The obligations, covenants, representations, warranties and remedies
set forth in this Agreement shall not merge with transfer of title but shall remain
in effect after the parties' obligations hereunder are otherwise fulfilled.
6.8 Further Actions. Each party shall execute and deliver or cause to be executed
and delivered any and all instruments reasonably required to convey the easements
to County and to vest in each party all rights, interests and benefits intended to be
conferred by this Agreement.
6.9 Governin~Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado.
6.10 Recordin~. This Agreement rnay be recorded in the Official Records of
Pitkin County-Poulsen Agreement ~
~
5/21/2010
Pitkin County to provide notice to any potential buyer of the Property regarding
the obligations created hereunder.
6.11 Attorne, s~' fees. In the event of any action for breach of, to enforce the
provisions of, or otherwise involving this Agreement, the court in such action
shall award a reasonable sum as attorneys' fees to the party who, in light of the
issues litigated and the court's decision on those issues, was the substantially
prevailing party in the action. If a party voluntarily dismisses an action, a
reasonable sum as attorneys' fees shall be awarded to the other party.
7. SATURDAYS, SUNDAYS, HOLIDAYS. If the final date of any time period of
limitation set out in any provision of this agreement falls on a Saturday, Sunday or a legal
holiday under the laws of the State of Colorado, then the time of such period shall be
extended to the next day which is not a Saturday, Sunday or legal holiday.
8. EFFECTIVE DATE. The Effective Date of this Agreement shall be the last date
signed by either party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
By: (.
Wayne oulsen
STATE OF COLORADO )
) ss.
COUNTY OF PITKIN )
"'~
The foregoing instrument was acknowledged before me this Zs day of
, 2010, by Wayne Poulsen
Witness my hand and official seal.
My commission expires:
.`'~``~~e ~A' `q''~~~~i
.~ ~ ••' •c~e` ~,
` ;~~ •~ :
.. • ~T'q~,~ ~
.. e :
~ 4.
« ~ ~•~ ~
.r
y, ~ ~} _ fl~' ~..,
r. 6 n U~ : .w
~ ~~ ~ ~
~~i+l~Y~~'V p~~~ro~o~^~~•• •bO,~`~
a~~~~ p ~ ~~~ ~~~ ~~~~
Pitkin County-Poulsen Agreement
~~~ ~
~l.£FI1.~ ,
~4
N Public
~~
5/21/2010
COUNTY
By f~ ~ ~M~`~
George Newma , Chair
Pitkin County Board of County Commissioners
APPROVED AS TO FORM
. _..
~- ._ __ _ ~~~~ ~
John Ely ~,,.:-~-~~ Hilary Fle er
County A~csrnf„~-~'`~~~ County Iv~an ger
Dale Will, Director
Open Space and Trails Program
Pitkin Counry-Pouisen Agreement
~~
5/21/2010
EXHIBIT A
Cooper Claims Legal Description
TARIFA LODE MINING CLAIM U.S.M.S. NO. 6189, DICK LODE MINING CLAIM
U.S.M.S. NO. 6189, RUCKER LODE MINING CLAIM U.S.M.S. NO. 6189, QUIEN
SABE LODE MINING CLAIM U.S.M.S. NO. 6189, EWING LODE MINING CLAIM
U.S.M.S. NO. 6189 AND ETCETERA LODE MINING CLAIM U.S.M.S. NO. 10616,
1N THE HIGHLANDS MINING DISTRICT.
Pitkin County-Poulsen Agreement