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Home My WebLink Aboutbocc.con.178.2010RECE�TION#: 570470, 06/11/2010 at 1 Q:31:19 A,M, '_'QNTRACT # - �Q � OF 5, R$O.flO Doc Code COVENANTS Janice K. Vos Caudill, Pitkin County, CO RESTRICTIVE COVENANT �� l �S� STRICTIVE COVENANT ("Covenant") is made and entered this � day of �,� by ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation having offices at 320 Main Street, Suite 204, Carbondale, Colorado 81623 (the "Trust"), and the ASPEN SKIING COMPANY, a Colorado corporation having offices at 117 Aspen Business Center, Aspen, Colorado 81611 ("ASC"), (collectively referred to as the "Grantor"), for the benefit of the Pitkin County Board of County Commissioners. WITNESSETH WHEREAS, Pitkin County, a political subdivision of the State of Colorado ("Crrantee"), has established a transferable development right ("TDR") system, Title 8 2006 Pitkin County Land Use Code, as may be amended from time to time ("Land Use Code"); WHEREAS, Grantor is the Trust and ASC are fee simple owners of that certain real property in Pitkin County, Colorado that is more particularly described on Exhibit A attached hereto and made a part hereof by this reference (the "Property"); WHEREAS, contemporaneously with the execution of this Restrictive Covenant, Grantee is executing and delivering to Grantor one (1) irrevocable TDR certificate bearing Certificate No. tIZ-oy-�o-�vv : WHEREAS, the Grantor has represented that no development or improvements currently exist on the Property; and WHEREAS, in exchange for the issuance of said certificate(s) by Grantee and consistent with the intent and stated purposes of the TDR system, Grantor is prepared to restrict and covenant the Property against any future development, as that term is currently defined in the Land Use Code, in perpetuity. NOW, THEREFORE, for and in consideration of the issuance to Grantor of Certificate No. I�- �- D'� — l b—S W , and in consideration of the covenants, terms, conditions, and restrictions hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency are hereby acknowledged, Grantor does hereby grant and convey to Grantee, forever and in perpetuity, an interest in the Property, for and in consideration of the recitals and mutual covenants, terms, conditions and restrictions contained herein: 1. Restrictive Covenant pertaining to the Property. Grantor hereby restricts the Property in perpetuity against any and all future development, as defined in the Land Use �ode, commencing on the date of this restrictive covenant. Such restrictions shall include, but are not limited to, the future development of any single family or other residential, commercial or industrial structures, as well as the future development of any recreational uses, as well as any change in the current existing use of the unimproved Property. Grantor acknowledges that any future development right in the Property has been severed from the Property by operation of this restrictive covenant. 2. Existing Uses of the Property. Existing uses of and activities on the Property may continue after the Property becomes subject to this restrictive covenant, including use of the land as an access road and ski trail. 3. Covenants Running with the Land; Binding Effect. The provisions of this deed restriction shall constitute a covenant that runs with the title to the Property for the benefit of the Grantee, its successors and assigns and sha11 be deemed an appurtenance to the title to such land. Grantor and its successors, heirs, assigns and transferees acknowledge that the TDR certificate(s) issued in consideration for this restrictive covenant is/are severed from the Property and that any sale, lease or other transfer of title to the Property shall not constitute a transfer of the TDR certificate(s) and any rights therein. 4. Permitted Uses and Activities. As owners of the Property, Grantor retains the right to perform any act consistent with the Land Use Code to the extent such act is not prohibited or limited by the requirements of this restrictive covenant. These ownership rights include, but are not limited to, the right to exclude any member of the public trespassing on the Property and the right to sell, lease, or otherwise transfer the Property to anyone Grantor chooses. Nothing herein shall be construed to be an approval by Grantee under the Land Use Code for any purpose. 5. Enforcement and Monitoring. This restrictive covenant and its terms and representations shall be fully enforceable by Grantee, its successors, assigns and agents in any action at law or equity or both, to secure compliance, including but not limited to, seeking injunctive relief and/or specific performance requiring the Grantor, its successors or assigns to cease and desist all activity in violation of the terms of this restrictive covenant and to return the Property to its condition prior to any violation. Violation of any of the terms or representations of this restrictive covenant may also result in the administrative cancellation of the TDR certificate(s) by the Grantee. Moreover, Grantee and its successors, assigns and agents shall be permitted access to, and to enter upon, the Property at reasonable times solely for the puYpose of monitoring, inspection, and if necessary, remediation in order to enforce and assure compliance with the terms and conditions of this restrictive covenant. 6. Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs and liabilities of any kind related to ownership, operation, upkeep, taxes and maintenance of the Property, including but not limited to, costs associated with compliance with this restrictive covenant. Grantee's acceptance of this restrictive covenant shall in no way be construed as an assumption of any duties or liabilities associated with the Property and Grantor acknowledges that by this restrictive covenant, Grantor continues to retain responsibility for any and all duties and liabilities associated with the Property. 7. Subordination. At the time of the conveyance of this restrictive covenant, the Grantor represents that the Property is not subject to any mortgage, deed of trust, or judgment lien, or any other instrument that might result in a foreclosure action that could affect the viability of this restrictive covenant. Page 2 of S � 8. Incorporation of the Land Use Code. The Land Use Code, as may be amended from time to time, and any terms or definitions contained therein, are hereby incorporated by this reference in their entirety. 9. Prohibition against future TDR. Unless otherwise provided by the Land Use Code and agreed upon by Grantee, Grantor shall not be entitled to any future, additional TDR arising from ownership of the Property following the execution of this restrictive covenant. 10. Modification. The terms of this restrictive covenant can only be modified by an amended covenant executed by both Grantor and Grantee and recorded in the records of the Clerk and Recorder for Pitkin County, Colorado. 11. Venue and Jurisdiction. Grantor and Grantee consent to venue and jurisdiction in the District Court for Pitkin County, Colorado for a11 matters concerning the interpretation and enforcement of this restrictive covenant. 12. Attorneys Fees and Costs. In the event of any action or suit between the parties hereto or their successors and assigns to enforce any of the agreements, covenants or restrictions contained herein, the prevailing party in any such action or suit, whether by final judgment or out of court settlement, shall recover from the other party all costs and expenses of such action or suit including reasonable attorneys fees. IN WITNESS WHEREOF, Grantor has executed this restrictive covenant as of the date and year first written above. Grantor ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation , By: �� iZ � / � c��. Martha Cochran, Executive Director STATE OF COLORADO ) ) ss. COUNTY OF GARFIELD ) The foregoing Restrictive Covenant was acknowledged before me this �p' of April, 2009 by Martha Cochran as Executive Director for Aspen Valley Land Trust, a Colorado nonprofit corporation. Witness my hand and official seal My commission expires on: �!/3o/2D1 Z Notary Public Page 3 of S M. SUMERA Notary Public State of Colorado � ASPEN SKIING COMPANY, a Colorado corporation B , r �� 1� , �ts � v�� p� STATE OF COLORADO ) ) ss. COLTNTY OF �i � k.,i n ) The foregoing Restrictive Covenant was acknowledged before me this � day of ��p r► � . 2009 bY � U i d l�� i l Ci C�. as ��+ �..e_ {�r�_S ►c�i�er Aspen Skiing Company, a Colorado corporation. Witness my hand and official seal My commission expires on: a�� , D l a`1 RACHEL MIDDLETON Notary Public = State of Colorado Notary Public ` ��/��'�( � � I ',�'��'-, L ��--�G ACCEPTED BY Pitkin County Board of County Commissioners � I ,t' v,�' -2� ,P �.c /,�`✓�..��'° By: [Name] �TitleJ � � _ �j - � G/lJ Page 4 of S EXHIBIT A Legal Description of the Property Center Lode Mining Claim, U.S.M.S. No. 4671, being in the Roaring Fork Mining District, according to the Patent thereof recorded September 5, 1887, in Book 136 at page 13. Page S of S �