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HomeMy WebLinkAboutbocc.con.254.2010 RECEPTION #: 577622, 02/14/2011 at 01:53:23 PM, CONTRACT #15Y: 1 OF 5, R $0.00 Doc Code RESOLUTION Janice K. Vos Caudill, Pitkin County, CO AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITHIN COUNTY, AUTHORIZING THE SETTLEMENT OF LITIGATION AND OTHER CLAIMS, AND AUTHORIZING THE GRANT OF CERTAIN EASEMENTS ORDINANCE #O5 / -2010 RECITALS A. The Board of County Commissioners of Pitkin County (the "Board ") is currently engaged in litigation with Alain DeGraeve ( "Degraeve ") in Pitkin County District Court Case No. 05 CV 141 (the "Litigation "), over a dispute involving real property located on Smuggler Mountain. The Board is also engaged in negotiations with Thomas Figge over a dispute arising out of a real estate contract between the Board and Mr. Figge. Both of these disputes concern a portion of the County -owned Mollie Gibson Park Parcel that is located in the immediate vicinity of property owned by Mr. DeGraeve, Mr. Figge, and Chuck Rowars. B. The parties referenced in Recital A wish to resolve their disputes and differences, and are nearing agreement on the terms of a settlement that will allow them to do so. In general the agreement under discussion provides for the Board to: (1) place a deed restriction in favor of DeGraeve, Figge and Rowans that will preclude future development on a roughly 1.6 acre portion of the County's Mollie Gibson property; (2) grant an exclusive easement over Sesame St. to DeGraeve and Figge that allows an existing gate and landscaping to remain in place; and (3) provide Rowars with an exclusive easement along his existing driveway; and (4) release all claims it may have against DeGraeve and Figge arising out of this dispute. In return, DeGraeve, Figge and Rowars will: (1) pay the Board $950,000 pursuant to a mutually- agreed schedule that provides for escalations in the purchase price if all funds are not received within an identified time period; and (2) release all claims they may have against the Board arising out of this dispute. C. This Ordinance is required to grant the easements contemplated by the agreement. NOW THEREFORE, be it resolved by the Board of County Commissioners of Pitkin County Colorado, as follows: 1. Authorization to Execute Settlement Agreement. The Board authorizes the Chair_ to execute a settlement agreement, in a form approved by the County Attorney, that includes the provisions set forth above and other terms acceptable to the County Attorney. 2. Authorization to Convey Easements. The Board authorizes the chair to execute easement documents, in a form approved by the County Attorney, that convey the easements identified above. 3. Settlement Agreement Controls. The terms of the settlement agreement between the parties shall control in the event of any conflict with the terms of this Ordinance so long as the Ordinance 0 -2010 Page 2 of 2 settlement includes the terms referenced in this Ordinance. This Ordinance shall not itself be construed as an agreement between the parties. INTRODUCED, FIRST READ, AND SET FOR PUBLIC HEARING ON THE 1sT DAY OF DECEMBER, 2010. NOTICE OF PUBLIC HEARING PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE 5th DAY OF DECEMBER 2010. APPROVED UPON SECOND READING AND PUBLIC HEARING ON THE 15 DAY OF DECEMBER 2010. PUBLISHED AFTEVa9PTION IN ASPEN TIMES WEEKLY ON THE bk DAY OF LIP lyr , 2010. ATTEST: BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO /l. %� /IUD r / !_.� Je ,r tte ones George Newma De ty Clerk Chair � 10' �f Amp Date: APPROVED AS TO FORM: Christopher G.'Seithn Phylis attice Assistant County Attorney ( Actin ounty Manager 2 17/41/ EASEMENT AGREEMENT THIS EASEMENT AGREEMENT (the "Easement Agreement ") is made this /0t day of ,Gdrwa! , 2011 between CHARLES M. ROWARS AS TRUSTEE OF THE RESTATED AND AMENDED CHARLES M. ROWARS REVOCABLE TRUST DATED APRIL 28, 1992 (the "Rowars Trust ") and BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, a body corporate and politic ( "Pitkin County "). RECITALS Whereas, Pitkin County is the owner of a certain parcel of land located within Pitkin County, Colorado as legally described on "Exhibit A" attached hereto and made a part hereof (the "Mollie Gibson Park Property "). Whereas, Rowars Trust is the owner of certain improved real property familiarly known as 131 Smuggler Mountain Road, Aspen, Colorado 81611 and legally described as Lot 7, Sonny Park North Subdivision, according to the Sunny Park North Adjustment and Annexation Map thereof recorded in Plat Book 20 at Page 2, Reception No. 292269, as amended by the Lot Line Adjustment of Lots 5 and 7, Sunny Park North Subdivision, according to the Plat thereof recorded February 7, 2000 in Plat Book 52 at Page 46 as Reception No. 440210, Pitkin County, Colorado (the "Rowars Property "); Whereas, access to Rowars Property is from Smuggler Mountain Road and over and through the Mollie Gibson Park Property pursuant to that certain "Dedication of R.O.W. for Road & Utility Purposes" as set forth on the Sunny Park North Boundary Adjustment and Annexation Map recorded August 25, 1987 in Plat Book 20 at Page 2, Reception No. 292269, Pitkin County, Colorado (the `Existing Access Right of Way "); Whereas, by this Easement Agreement, Pitkin County and Rowars Trust desire to amend, restate, and supersede and replace in its entirety the Existing Access Right of Way with this Easement Agreement as provided for herein. NOW, THEREFORE, for a good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Pitkin County and Rowars Trust hereby enter into this Easement Agreement. 1. Amendment and Existing Access Right of Way. By way of this Easement Agreement, Pitkin County, as the owner of the Mollie Gibson Park Property and Rowars Trust and its successors and assigns, as the owner of Rowars Property, hereby amend, restate, and supersede and replace in its entirety the Existing Access Right of Way with the teens and conditions of this Easement Agreement. 2. Grant of Driveway Access and Landscaping Easements. Subject to: (a) the reserved rights of Pitkin County as set forth in Section 3 immediately below; and (b) all prior reservations, restrictions, easements, exceptions and encumbrances of record, Pitkin County Page 1 RECEPTION #: 577585, 02/10/2011 at 03:57:30 PM, sus xs\3su3n.i 1 OF 7, R $0.00 Doc Code EASEMENT Janice K. Vos Caudill, Pitkin County, CO hereby grants, transfers and conveys unto Rowars Trust and its successors and assigns forever in the ownership of Rowars Property a perpetual, exclusive easement and right -of -way which is fifteen (15) feet on either side of the centerline of the existing driveway now in place, running from the edge of the road improvements comprising Smuggler Mountain Road to the northern boundary of the Rowars Property, including but not limited to, the right to install, maintain, and replace asphalt or gravel road surfaces thereon, to re -grade and re -align such surfaces from time to time, to install, maintain and replace a snowmelt system thereon, and the right to install, maintain and replace from time to time, lighting and landscaping, including irrigation and utility lines. (a) The easement granted herein shall be for the use and benefit of and shall run with the title to the Rowars Property. (b) Rowars Trust accepts the easements based upon the condition of the Smuggler Mountain Road as it exists on the date of this Easement Agreement, and shall make no demands upon Pitkin County for any improvement to the condition of the access at any time. (c) Rowars Trust shall assume all liability based upon the conditions of the easements granted herein , and Pitkin County shall not be liable for damage caused to persons or property caused by the condition of the easements at any time or by vehicular or pedestrian traffic on the driveway or other use thereof. Rowars Trust, on behalf of itself and its successors and assigns, agrees to defend, indemnify and hold harmless Pitkin County and its successors and assigns against any and all claims, demands, causes of action and liability arising out of the condition of the easements set forth herein, or arising out of any and all actions it takes on the Mollie Gibson Park Property. (d) The rights, duties and obligations herein contained shall inure to the benefit of and be binding upon the parties hereto, and their successors and assigns. (e) Subject to all prior reservations, restrictions, easements, exceptions and encumbrances of record, Pitkin County warrants and agrees to defend the title to the easement as conveyed herein. 3. Pitkin County's Reserved Rights. Notwithstanding Pitkin County's grant, transfer and conveyance to Rowars Trust of the rights as set forth in Section 2 immediately above, Pitkin County reserves a right of vehicular and pedestrian access over all of the lands encumbered by the Driveway Access and Landscaping Easements from time to time for the following purposes: (a) the repair, maintenance and replacement of existing drainage facilities, utility service lines and related facilities located from time to time on the Mollie Gibson Park Property; (b) performance of weed control, drainage maintenance, fire suppression, habitat enhancement or other non - development related maintenance activities on the Mollie Gibson Park Property. Said non- development related maintenance activities may include, but are not limited to: (i) reclamation and management activities required pursuant to the Partial Consent Decree with Pitkin County dated March 24, 1994 and recorded April 5, 1995 in Book 777 at Page 910, Pitkin County, Colorado, (ii) reclamation and management activities which may be ordered by a state Page 2 BUS_RE\3824377.1 or federal agency or court of competent jurisdiction, (iii) reclamation and management activities which may be necessary to manage subsidence or otherwise protect public safety or adjacent properties; (c) for emergency vehicles in connection with rescue or other emergency services operations necessary to address threats to life, health, or safety; and (d) for Iaw enforcement vehicles in connection with the patrol or policing of the Mollie Gibson Park Property. Should Pitkin County or its agents damage landscaping or driveway improvements within the easements while exercising rights reserved pursuant to this Section 3, Pitkin County shall cause said improvements to be restored within a reasonable time following the completion of the activities which caused such damage; provided, however, that nothing herein shall be construed to render Pitkin County responsible for actions not taken by Pitkin County or its agents, and Pitkin County specifically reserves its rights under the Colorado Governmental Immunity Act for all such claims. Nor shall anything herein be construed to render a law enforcement or emergency services officer or entity an agent of Pitkin County. The parties agree that nothing herein shall limit the County' s authority to, in its sole discretion, manage, maintain and improve Smuggler Mountain Road and the 60 -foot right -of- way for said Road. The County further reserves for the general public the right of pedestrian access over the easements granted herein. 4. Miscellaneous. (a) Notice of Default, Right to Cure. In the event of any default under the provisions of this Easement Agreement, the non - defaulting party shall, prior to the exercise of any right or remedy, give the party alleged to be in default written notice of such default together with the right for a period of ten days after receipt of such notice to cure said default. If an alleged default by its nature is not capable of being cured within the time provided, the party alleged to be in default shall, provided such party is proceeding with all due diligence, have up to an additional twenty (20) days to cure said default: If a default is not cured within the time provided or any extension thereof (which right to cure period shall not under any circumstances exceed in the aggregate thirty (30) days), the non - defaulting party shall then and thereafter be free to pursue any right or remedy allowed by this Easement Agreement or otherwise by law. (b) Remedies. Each party shall have the right and power to bring suit in its own name for any legal or equitable relief due to lack of compliance with any provisions of this Easement Agreement. If any court proceedings are instituted in connection with the rights of enforcement and remedies provided in this Easement Agreement, the prevailing party shall be entitled to reimbursement of its costs and expenses, including reasonable attorneys' fees, in connection therewith. (c) No Waiver. The failure of either party to insist dpon the strict performance of any provisions of this Easement Agreement or to exercise any right or option available to it, or to serve any notice or to institute any action, shall not be a waiver or a relinquishment for the Page 3 BUS_RE\3824377.1 future of any such provision. (d) Amendments in Writing. This Easement Agreement may not be amended, nor may any rights hereunder be waived, except by an instrument in writing executed by the parties hereto and duly recorded in the real estate records of Pitkin County, Colorado. (e) Colorado Law. The interpretation, enforcement or any other matters relative to this Easement Agreement shall be construed and determined in accordance with the laws of the State of Colorado. (0 Correction Documents. In the event any clerical or other errors are found in this Easement Agreement the parties agree to promptly execute, acknowledge, initial and/or deliver as necessary any documentation in order to correct the erroneous document, or description. (g) Binding Effect. All provisions of this Easement Agreement inure to the benefit of and are binding upon the parties hereto, their heirs, successors, assigns and personal representatives. (h) Counterparts and Facsimile Signature. This Easement Agreement may be executed in multiple counterparts each of which shall constitute an original but all of which when taken together shall constitute one and the same document. The parties hereby agree that this Easement Agreement may be offered and/or accepted by facsimile communication and that delivery of facsimile signatures shall be deemed the same as delivery of original signatures. (i) No Waiver of Land Use Requirements. Nothing herein shall be construed to exempt Rowars Trust or its successors or assigns from compliance with any and all requirements of the Pitkin County Code or any other applicable laws governing actions taken within the easements granted herein. The parties specifically acknowledge that the property interests granted herein do not entitle Rowars Trust to install improvements without first complying with the Pitkin County Land Use Code and all other applicable laws. IN WITNESS WHEREOF, the parties have duly executed this Easement Agreement on the date set forth above. Page 4 BUS_RE\3824377.1 �^ (12 ROWARS TRUST: CHARLES M. ROWARS AS TRUSTEE OF THE RESTATED AND AMENDED CHARLES M. ROWARS REVOCABLE DATED APRIL 28, 1992 By: 0/ Trus ee Date signed: A[ / � 4 STATE OF ) COUNTY O I fil hi ) Subscribed and sworn to before me by Charles M. Rowars as Trustee of the Restated and Amended Charles M. Rowars Revocable Trust Dated April 28, 1992 this 9n) day of February, 2011. My commission expires: i 4141/ 1 . Witness my hand and official seal. A A P lt 'L4 3 , Not?ry P li fYO c /4 � lit °. 1 .Y = '`� f3H 11 '_ Page 5 BUS_RE3824377.1 f'f PITKIN COUNTY: BOARD OF COUNTY COMMISSIONERS PITKIN COUNTY, COLO A ' 4_ rA4 - 4 f m Title: , �.., , a�i _ 0). . Dated: OP-Aft , 2011 STATE OF COLORADO ) ) ss COUNTY OF PITKIN ) Th9 foregoing, instrument as acknowledged before me this q day of February, t 2011, by Vie t.l t O'ittl�n+dsas 0` taly womww . of Pitkin County, Colorado. of Bat e. Witness my hand and official seal. My Commission Expires: 7 — /S- oI Z - ...... . �'s ,, 7, . Public - .A ;' • {{ LINDA %GUSTAFSON ‘ OF Mr Commission Elites 01n512Ol2 Page 6 BUS_RE13824377. I q EXHIBIT A TO EASEMENT AGREEMENT (Legal Description of Mollie Gibson Park Property) KN M EN BY THESE PRESENTS THAT THE BOARD OF BOUNTY' • .COMMISSIONERS OF PITKIN COUNTY BEING THE OWNER OF :CERTAIN s P I TK 1 N COUNTY COLORADO DESCRIBED AS FOLLOWS:- • : . 4 .';; • SECTION 7 TOWNSHIP SOUTH RANGE C 84 E WEST DF'TH .31XTH • PRiN'CIPAL'MERIDIAN AND MORE PARTICULARLY DESCRIBED—AS ' FOtL.OWS:. . BEGINNING AT. THE NORTHEASTERLY' REENTRANT CORNER OF THE .': • . . MO E : Q I BSON PARK PARCEL t DEN I CAL, WITH THE SOU.Tt1WESTERLY .. .: . • 'CORNER N0;T2 OF. SMUGGLER S LE MARKE© / GRO U ND WIITN .'': : . :A''5/8 JNCH.DIAI'SETER REBAR WITH A'1 1/4 INCH. DIAMETER ..:YELIW.•::',::.:'. CAP..MOUNTED THEREON FOUND IN PLACE WHENCE' CORNER'. NOr ':•:': `...MOLLIE.GIBSON M.S. 4281 AM..AN ORIGINAL MARKED'STONE•F :1N.PLACE.BEARS SOUTH 34 I3'56' EAST 10.00 FEET AND WREN :THE .'CENTER CORNER OF SAID SECTION 7 BEARS NORTH 40 °54'30": WEST ,.;',..,' • . FEET: . THENCE NORTH 56 °36'26' EAST 48.16 FEET: ' .THENCE:SOUTH 45 °30'00' EAST 147.18 FEET: THENCE. SOUTH 45 °30'00' WEST 485.65 FEET: . THENCE NORTH 67 °27'17' WEST 186.82 FEET: '• ' THENCE NORTH 41 °54'58' WEST 200.60 FEET: .THENCE NORTH 38 °00'00' EAST 135.58 FEET: THENCE NORTH 43 0 54'35' WEST 188.89 FEET; THENCE NORTH 46 ° 05'25' EAST 65.00 FEET: THENCE NORTH 05 °58'23' EAST 224.13 FEET: THENCE NORTH 40 °28'10' WEST 59.52 FEET: THENCE NORTH 47 °37'25' WEST 48.47 FEET: THENCE NORTH 55 °41'35' EAST 241.73 FEET: TO THE POINT OF BEGINNING • Page 7 BUS_RE13824377.1 G .:I4 // AMENDED AND RESTATED EASEMENT AGREEMENT THIS AMENDED AND RESTATED EASEMENT AGREEMENT (the "Easement Agreement ") amends, restates, and supersedes and replaces in its entirety that certain "2006 Easement" defined and described below and is made this /0 ti day of cat-tali , 2011, between ALAIN DEGRAEVE and his heirs, successors and assigns ( "Degraevet), whose address is P.O. Box 7975, Aspen, Colorado 81612, JENNIFER N. FIGGE, INDIVIDUALLY, AND RICHARD R. HORST AS TRUSTEE OF THE THOMAS K. FIGGE PERSONAL RESIDENCE TRUST, and their successors and assigns with the address of 200 Sesame Street, Aspen, Colorado 81611 (collectively "Figges "), and the COUNTY OF PITKIN, COLORADO, A POLITICAL SUBDIVISION and its successors and assigns ( "Pitkin County "), with an address of 530 East Main Street, Aspen, Colorado 81611. RECITALS Whereas, Pitkin County is the owner of atcrtain parcel aflaard Located within Pitkin County, Colorado as legally described on "Exhibit A" attached hereto and made a part hereof (the "Mollie Gibson Park Property "). Whereas, Figges are the owners of Lot 5, Lot Line Adjustment Plat of Lots 5 and 7, Sunny Park North Subdivision, according to the Plat thereof recorded February 7, 2000 in Plat Book 52 at Page 46 as Reception No. 440210 and according to the Lot Line Adjustment Plat of Lot 5, Sunny Park North Subdivision and Lot 2, Aspen Electric Subdivision recorded May 24, 2005 in Plat Book 73 at Page 72 as Reception No. 510454 ( "the Figge Property "). Whereas, Degraeve is the owner of certain improved real property legally described as set forth on "Exhibit B" attached hereto and made a part hereof, and familiarly known as 210 Sesame Street, Aspen, Colorado 81611, situate in the County of Pitkin, State of Colorado (the " Degraeve Property "). Whereas, Pitkin County as the owner of the Mollie Gibson Park Property and Barry C. Siegel and Sharon L. Siegel, as the previous owners of a portion of the Degraeve Property previously entered into that certain Access Easement (the "1993 Easement ") recorded February 4, 1993 in Book 702 at Page 756, Pitkin County, Colorado. Whereas, Degraeve and Pitkin County are parties to a civil action pending in Pitkin County District Court, Board of County Commissioners v. Degraeve, Case No. 05 CV 141 -2 (the "Pending Litigation "). In 2006, Degraeve and Pitkin County previously entered into a partial settlement of the Pending Litigation and pursuant to such partial settlement, Pitkin County granted Degraeve a non - exclusive easement across the Mollie Gibson Park Property which partially modified the location of the 1993 Easement, all in that certain easement agreement dated January 27, 2006 and recorded February 17, 2006 as Reception No. 520969, Pitkin County, Colorado ( "2006 Easement "). RECEPTION #: 577584, 02/10/2011 at Page 1 03:57:29 PM, 1 of 11, R $0.00 Doc Code EASEMENT Janice K. Vos Caudill, Pitkin County, CO BUS_RE\3824378.1 /6 .... __.._.._ _._. Whereas, Degraeve and Pitkin County have now reached a complete settlement of the Pending Litigation and desire to amend, restate, and supersede and replace in its entirety the 2006 Easement with this Easement Agreement as provided for herein. Whereas, the parties hereto represent to one another that they have full authority to enter into this Easement Agreement. NOW, THEREFORE, for a good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Pitkin County, Degraeve and Figges hereby enter into this Easement Agreement. 1. Amendment and Restatement of 2006 Easement. By way of this Easement Agreement, Pitkin County, as the owner of the Mollie Gibson Park Property, Degraeve and Degraeve'8 heirs, successors and assigns, as the owner of the Degraeve Property, and Figges and Figges' heirs, successors and assigns, as the owners of the Figge Property, hereby amend, restate, and supersede and replace in its entirety the 2006 Easement, with the terms and conditions of this Easement Agreement. Other than the easement alignment, the terms of the 1993 Easement shall remain in effect unless specifically modified herein. 2. No Vacation or Modification of Dedication of Public Right of Way Over City Property. Pitkin County, Degraeve and Figges hereby agree that the dedication of a public right of way for roadway, drainage and utility purposes over lands owned by the City of Aspen as set forth on the Plat of the Sunny Park North Boundary Adjustment and Annexation Map, recorded in Plat Book 20 at Page 2, Pitkin County, Colorado shall not be affected or modified by this Easement Agreement. 3. Grant of Driveway Access and Landscauing Easements. Subject to: (a) the reserved rights of Pitkin County as set forth in Section 4 immediately below; (b) all prior reservations, restrictions, easements, exceptions and encumbrances of record, Pitkin County hereby grants, transfers and conveys unto Degraeve and Figges and their respective heirs, successors and assigns forever in the ownership, respectively, of the Degraeve Property and the Figge Property the following "Driveway Access and Landscaping Easements ": (1) a perpetual exclusive easement and right -of -way which is ten (10) feet on either side of the line identified and described as, "DRIVE EASEMENT" on the attached "Exhibit C ", including but not limited to the right to install, maintain, and replace asphalt or gravel road surfaces thereon and to re- grade and re -align such surfaces from time to time, and to install, maintain and replace a snowmelt system thereon, (2) a perpetual exclusive easement and right -of -way to install, maintain and replace from time to time, lighting and landscaping, including irrigation and utility lines along an area which is an additional ten (10) feet on either side of the Drive Easement, and (3) a perpetual exclusive easement and right -of -way to maintain, repair and replace from time to time the existing entry gate, pillars and related structures, improvements, and utility lines located on the Mollie Gibson Park Property at the location shown on the attached Exhibit C . (a) The easements granted herein shall be for the use and benefit of and shall run with the title to Degraeve Property and the Figge Property. Page 2 , BUS RE\3824378.1 11 (b) Degraeve and Figges accept the easements based upon the condition of the Smuggler Mountain Road as it exists on the date of this Easement Agreement, and shall make no demands upon Pitkin County for any improvement to the condition of the access at any time. (c) Degraeve and Figges shall assume all liability based upon the condition of the Driveway Access and Landscaping Easements, and Pitkin County shall not be liable for damage caused to persons or property, including the interests of the Salvation Ditch Company, caused by the condition of the road at any time or vehicular or pedestrian traffic on the Driveway Access and Landscaping Easements or other use thereof. Degraeve and Figges, on behalf of themselves and their successors and assigns, agree to defend, indemnify and hold harmless Pitkin County against any and all claims, demands, causes of action and liability arising out of (a) the condition of the easements set forth herein, and (b) any and all actions they take on the Mollie Gibson Park Property. (d) The rights, duties and obligations herein contained shall inure to the benefit of and be binding upon the parties hereto, their heirs, successors and assigns. Subject to all prior reservations, restrictions, easements, exceptions and encumbrances of record, Pitkin County warrants and agrees to defend the title to the Driveway Access and Landscaping Easements as conveyed herein. 4. Pitkin County's Reserved Rights. Notwithstanding Pitkin County's grant, transfer and conveyance to Degraeve and Figges of the rights as set forth in Section 3 immediately above, Pitkin County reserves a right of vehicular and pedestrian access over all of the lands encumbered by the Driveway Access and Landscaping Easements from time to time for the following purposes: (a) the repair, maintenance and replacement of existing drainage facilities, utility service lines and related facilities located from time to time on the Mollie Gibson Park Property; (b) performance of weed control, drainage maintenance, fire suppression, habitat enhancement or other non - development related maintenance activities on the Mollie Gibson Park Property. Said non - development related maintenance activities may include, but are not limited to: (i) reclamation and management activities required pursuant to the Partial Consent Decree with Pitkin County dated March 24, 1994 and recorded April 5, 1995 in Book 777 at Page 910, Pitkin County, Colorado, (ii) reclamation and management activities which may be ordered by a state or federal agency or court of competent jurisdiction, (iii) reclamation and management activities which may be necessary to manage subsidence or otherwise protect public safety or adjacent properties; (c) for emergency vehicles in connection with rescue or other emergency services operations necessary to address threats to life, health, or safety; and (d) for law enforcement vehicles in connection with the patrol or policing of the Mollie Gibson Park Property. Should Pitkin County or its agents damage landscaping or driveway improvements within the easements while exercising rights reserved pursuant to this Section 4, Pitkin County shall cause said improvements to be restored within a reasonable time following the completion of the activities which caused such damage; provided, however, that nothing herein shall be construed Page 3 BUS_RE13824378.1 n • to render Pitkin County responsible for actions not taken by Pitkin County or its agents, and Pitkin County specifically reserves its rights under the Colorado Governmental Immunity Act for all such claims. Nor shall anything herein be construed to render a law enforcement or emergency services officer or entity an agent of Pitkin County. The parties agree that nothing herein shall limit the County's authority to, in its sole discretion, manage, maintain and improve Smuggler Mountain Road and the 60 -foot right -of- way for said Road. The County further reserves for the general public the right of pedestrian access over the easements granted herein. Additionally, Degraeve and Figges expressly acknowledge and agree that Pitkin County's grant, transfer and conveyance to Degraeve and Figges of the Driveway Access and Landscaping Easements as set forth in Section 3 immediately above shall at all times be subject to any rights of the Salvation Ditch Company in connection with the Salvation Ditch as the same is presently located on the Mollie Gibson, Park Property. 5. Compliance with Applicable Laws. Nothing herein shall be construed to exempt Figges, Degraeve, or their respective successors or assigns from compliance with any and all requirements of the Pitkin County Code or any other applicable laws governing actions taken within the easements granted herein. The parties specifically acknowledge that the property interests granted herein do not entitle any person to install improvements without first complying with the Pitkin County Land Use Code and all other applicable laws. IN WITNESS WHEREOF, the parties have duly executed this Easement Agreement on the date set forth above. DEG' �a 4 Alain De a Dated: 2 l Go ( , 2011 STATE OF COLORADO ) ) ss COUNTY OF PITKIN The foregoing instrument was acknowledged before me this (0 day of February, 2011, by Alain Degraeve. ``` \��� o r t�S A t M g -' � , o,� Witness my hand and official , • .' Not . 0 2. My Commission Expires: 6 t � ` ' , �.. ' D 9 �' < ,! No . 'ub � ' Page 4 � � / // OC ' OR 1 P O p ```` �. /tom i nstOr BUS_RE\38243'78.1 /3 PITKIN COUNTY: BOARD OF COUNTY COMMISSIONERS PITKIN COUNTY, COLD' II • 401.Vr l I r / p Title: : _ ,.,,, lia _ a . ba� Dated: Oqr ay , 2011 STATE OF COLORADO ) ) ss COUNTY OF PITKIN ) Tln foregoing instrume ) was acMtowledged before me this cr day of February, 2011, by Dikati t ISicL6.ds as 1,0 LC. i ,Wanww, of Pitkin County, Colorado. Witness my hand and official seal. My Commission Expires: '7 —/5 ?ti /2_ , s I. YPV ' - a. • LINDA •, �� ' ' o Public • . 1GUSTAFSON \\ My Commission Expires 0711512012 F. Page 5 BUS_RE\3824378.1 / q FIGG ■ alti &LW A g c Kt DaterrAlte 2011 STATE OF HqW A. ' ) COUNTY OF (-i o Vo t. 01../ T Subscribed and sworn to before me by Jennifer N. Figge this I day of February, 2011. My commission expires: 0 S-3 ° - .ot 3 Witness hand and official seal. Notary Public Doc. Date: z - - _ # Page's ‘ ,4t 11 Notary Name: Thomas S. Dods Fir at t rrcuft i S s. DOC, Description A me,apa n a.w4 i`... nT: R w W Se Wt ecC , • (kr 7-- r "I_ C 6fotary Signature ; .. Data - ���nr . ^ '' : f Yt 111 Page 6 BUS_RE\3821721. I h / l RICHARD R. HORST, AS TRUSTEE OF THE THOMAS K. FIGGE QUALIFIED PERSON RESIDENCE TRUST By: I J■g / � , Tustee Dated: ..3- a,Qnur 9 , 2011 STATE OF S ) ) COUNTY OF Sc. a' ) Subscribed and sworn to before me by Richard R. Horst as Trustee of The Thomas K. Figge Qualified Personal Residence Trust this I day of February, 2011. My commission expires: Witness my hand and official seal. s* + JEFFREY W. PAUL No li1 2 'b Commission Number 152756 ow MY Commission Expires January 17, 2014 Page 7 BUS_RE13821721.1 /6 EXHIBIT A TO AMENDED AND RESTATED EASEMENT AGREEMENT (Legal Description of Mollie Gibson Park Property) KNOW ALL M EN BY THESE PRESENTS THAT THE BOARD OF BOUNTY :;. "; . " COMMISSJONERS OF PITCH COUNTY BEING THE •OWNER OF :CERTAINANDS•1N' PITKIN COUNTY COLORADO DESCRIBED. AS FOLLOWS: . • • L THE )IOLLIE GIBSON PARK PARCEL IS IN .THE SE .17. OF,.,•, PRINCIPAL'MERIDSANP 10 SOUTH 'RANGE PARTICULARLY BED S .: ':`.:; 1:F0L „;.BEGINNTNG AT. THE NORTHEASTERLY' REENTRANT CORNER OF THE •.. :::;': .MO PARK PARCEL IDENTICAL WITH THE SOUT,HWE�STERL CORNER N0:T2EOF M.SS © T ( TT GROUND WflH• ' ''": - • " ' • ::A .INCH.DIAMETER WITH A'1 I/4 IITCH.DIAME� R..:YEL'OW. , : :'CAP. THEREON FOUND IN PLACE WHENCE 'CORNER N0:.'''1 F '...MOLLIE,GIBSON M.S. 4281 AM..AN ORIGINAL MARKED'STONE F �l Nb..:. . %.•::' IN . PLACE .BEARS` SOUTH 34 13'56' EAST 10.00 FEET AND WHEN E;THE ..r C NTTER 'CORNER SAID SECTION 7 REARS NORTH 40 °54'30t•WEST I 2484.68 FEET: ' THENCE NORTH 56 °36'26' EAST 48.16 FEET: . ' THENCE SOUTH 45 ° 30'00' EAST 147.18 FEET: THENCE. SOUTH 45 °30'00' WEST 485.65 FEET: . THENCE NORTH 67 °27'17' WEST 186.82 FEET: ' THENCE NORTH 41 °54'58" WEST 200.60 FEET: .THENCE NORTH 38 °00'00' EAST 135.56 FEET: THENCE NORTH 43 °54'35' WEST 188.89 FEET: THENCE NORTH 46 ° 05 . 25' EAST 65.00 FEET: • THENCE NORTH 05 °58'23' EAST 224.13 FEET: THENCE NORTH 40 °28'10' WEST 59.52 FEET: THENCE NORTH 47 °37'25' WEST 48.47 FEET: THENCE NORTH 55 °41 EAST 241.73 FEET: TO THE POINT OF BEGINNING • Page 8 BUS REh3824378.1 / EXHIBIT B TO AMENDED AND RESTATED EASEMENT AGREEMENT (Legal Description of Degraeve Property) Lot 2, ASPEN ELECTRIC SUBDIVISION, according to the Plat thereof recorded February 19, 1993 in Plat Book 30 at Page 85 as Reception No. 354093, as amended by the Lot Line Adjustment Plat of Lot 5, Sunny Park North Subdivision and Lot 2, Aspen Electric Subdivision recorded May 24, 2005 in Plat Book 73 at Page 72 as Reception No. 510454, and the Lot Line Adjustment Plat of Lot 2, Aspen Electric Subdivision and Midland Park Subdivision recorded February 8, 2011 in Plat Book 96 at Page 11, and Reception No. 577487, Pitkin County, Colorado. Page 9 BUS _ RE\ 3824378.1 1 „/ EXHIBIT C TO AMENDED AND RESTATED EASEMENT AGREEMENT (Depiction of Driveway Access and Landscaping Easements) Page 10 BUS_RE\3824378.1 /9 EXHIBIT C TO THE AMENDED AND RESTATED EASEMENT AGREEMENT DATED: FEBRUARY 7, 2011 . t r..4 0 40 NO . i gag =NIL . s CUAO / s. 4C7 / / O emu AAA. AA // if ulN awwr / 7 / / / / 1 / / T .._- .L_ > •ITCIN 1 . Oa NA AA • COUNTY / /• • // /% / / / PITCIN \ \ E / COUNTY \ \ / / 1 \\ NpM t \ / C / /g / a /¢ / \ EASEMENT 4, \ .f� // ACCESS EMENT 6tz ; \K tl N . { Yi1 p 1�� N�PoKR141M I�X� $[i M J'NIN ) V WkMI V� AS C Y 013 ... X. / g / i {i u OLrl:.1 �' J� . /1 / / / PoIYLXX 702 1w6.} wIIIF] Yf L01 I WY I.NI IhNi it, / \ ` iii iaa 6l M5 .� .' I v.w f111i I T / \ s( 7 / / I�yy�__ ii iw * / .... / '1i.`aga Sw AU i wMw *an w w wow a nuN00.04 M % t a a... / 7,4 j* a 4 4 Z NA / CITY 07 ASPEN 7a� 1 4 LOT 7 H P MIMEO 90 SPEN SURVEY ENGINEERS, INC. LOT f I10 nut /NLm 57011 xn pan, MI9, caa000 11.1. INCNIf.V NXL 075-0116 MTh 471 • MUTUAL RELEASE AND SETTLEMENT AGREEMENT THIS MUTUAL RELEASE AND SETTLEMENT AGREEMENT (the "Agreement ") is entered into this /0 th day of February, 2011 (the "Effective Date "), by and among ALAIN R. DEGRAEVE ( "Degraeve "); JENNIFER N. FIGGE, INDIVIDUALLY and RICHARD R. HORST AS TRUSTEE OF THE THOMAS K. FIGGE QUALIFIED PERSONAL RESIDENCE TRUST (collectively, "Figges "); THOMAS K. FIGGE, INDIVIDUALLY ( "Thomas K. Figge"); CHARLES M. ROWARS AS TRUSTEE OF THE RESTATED AND AMENDED CHARLES M. ROWARS REVOCABLE TRUST DATED APRIL 28, 1992 (the "Rowars Trust "); and BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, a body corporate and politic ( "Pitkin County "). Degraeve, Figges, Thomas K. Figge, the Rowars Trust, and Pitkin County may each be referred to herein as a "Party" and collectively as the "Parties." This Agreement is made with reference to and in reliance upon the following facts and circumstances. A. Degraeve is the owner of certain improved real property legally described as set forth on "Exhibit A" attached hereto and made a part hereof, and familiarly known as 210 Sesame Street, Aspen, Colorado 81611, situate in the County of Pitkin, State of Colorado (the "Degraeve Property "); B. Degraeve and Pitkin County have certain disputes and claims related to Degraeve's legal right to maintain an entry gate, pillars and landscaping on certain lands owned by Pitkin County as legally described on "Exhibit B" attached hereto and made a part hereof (the "Mollie Gibson Park Property"); C. As a result of such disputes, Degraeve and Pitkin County are parties to certain litigation captioned Board of County Commissioners of Pitkin County, Colorado, a body corporate and politic v. Alain Degraeve, Case No. 05 CV 141, Pitkin County District Court (the "Degraeve Lawsuit "); D. As described in Pitkin County Ordinance No. 001 -2006, dated January 17, 2006 and recorded January 20, 2006 as Reception No. 519986, Pitkin County, Colorado, and as provided for in that certain Order of Partial Dismissal With Prejudice and to Release and Discharge Lis Pendens dated August 3, 2006 and recorded April 27, 2006 as Reception No. 523449, Pitkin County, Colorado, Degraeve and Pitkin County previously settled certain of their disputes and claims in connection with the Pending Litigation, with the exception of Degraeve's 1 BUS_RE\3824379.1 • counterclaim for declaratory relief regarding Degraeve's legal right to maintain an entry gate, pillars and landscaping on the Mollie Gibson Park Property; E. Figges are the owner of certain improved real property familiarly known as 200 Sesame Street, Aspen, Colorado 81611, and legally described as set forth on "Exhibit C" attached hereto and made a part hereof, and familiarly known as 200 Sesame Street, Aspen, Colorado 81611, situate in the County of Pitkin, State of Colorado (the " Figge Property "); F. Figges, Thomas K. Figge, and Pitkin County have certain disputes and claims related to a "Firm Offer to Purchase Portion of Mollie Gibson Parcel" dated September 7, 2007 (the "Figge Purchase Contract ") providing for, among other things, Thomas K. Figge's purchase and Pitkin County's sale of a portion of the Mollie Gibson Park Property described therein; G. Degraeve and Figges have certain disputes and claims related to an Escrow Agreement dated February 27, 2006 between Degraeve and Figges (the "Escrow Agreement "), including Degraeve's prior receipt of $500,000.00 of "Escrowed Funds" from Stewart Title of Colorado, Inc. — Aspen Division, as "Escrow Agent" under such Escrow Agreement, and which also relates to Degraeve's legal right to maintain an entry gate, pillars and landscaping on the Mollie Gibson Park Property; H. As a result of such disputes, Degraeve and Figges are parties to certain litigation captioned Jennifer N. Figge, John K. Figge, as Trustees of the Thomas K. Figge Qualified Personal Residence Trust v. Alain R. Degraeve, Case No. 05 CV 106, Pitkin County District Court and appeal thereto to the Colorado Court of Appeals at Case No. 10 CA 2328 (the " Figge Lawsuit "); I. Rowars Trust is the owner of certain improved real property familiarly known as 131 Smuggler Mountain Road, Aspen, Colorado 81611 and legally described as Lot 7, Sunny Park North Subdivision, according to the Sunny Park North Adjustment and Annexation Map thereof recorded in Plat Book 20 at Page 2, Reception No. 292269, as amended by the Lot Line Adjustment of Lots 5 and 7, Sunny Park North Subdivision, according to the Plat thereof recorded February 7, 2000 in Plat Book 52 at Page 46 as Reception No. 440210, Pitkin County, Colorado (the "Rowars Property "); J. Rowars Trust is not a party to the Degraeve Lawsuit or the Figge Purchase Contract, but desires to participate in certain of the transactions described herein for the benefit of the Rowars Property; and K. As set forth herein, the Parties desire to provide for a settlement of the disputes and claims between Degraeve and Pitkin County with respect to the Degraeve Lawsuit, the Parties desire to provide for a settlement of the disputes and claims between Figges and Thomas K. Figge, and Pitkin County with respect to the Figge Purchase Contract, the Parties desire to provide for a settlement of the disputes and claims between Degraeve and Figges with respect to the Figge Lawsuit, and further desire to reduce their agreement to do so in writing. -2- BUS_RE\3824379.1 wyLvl�� 0 / NOW, THEREFORE, based on mutually exchanged consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. Recital of Facts. The facts listed above are true and correct and are hereby incorporated into the operative terms of this Agreement. 2. Degraeve's Settlement Obligations. The "Degraeve Settlement Obligations" shall consist of the following: 2.1 Payment of Settlement Amount. Degraeve, on behalf of himself and his successors and assigns, hereby agrees to pay to Pitkin County in Good Funds the total sum of Four Hundred and Twenty -Five Thousand Dollars and no /100 ($425,000.00). 2.2 New Sesame Street Easement; Restrictive Covenants Agreement. Degraeve shall execute and deliver with duly acknowledged signatures the "New Sesame Street Easement" (as defined below) and the "Restrictive Covenants Agreement" (also as defined below). Degraeve shall perform all of the Degraeve Settlement Obligations contemporaneous with and conditioned upon Rowars Trust's performance of the Rowars Obligations (as defined below), Figges' and Thomas K. Figge's performance of the Figge Settlement Obligations (as defined below), and Pitkin County's performance of the Pitkin County Settlement Obligations (as defined below). 3. Rowars Trust's Obligations. The "Rowars Obligations" shall consist of the following: 3.1 Payment of Amount. Rowars Trust, on behalf of itself and its successors and assigns, hereby agrees to pay to Pitkin County in Good Funds the total sum of One Hundred Thousand Dollars and no /100 ($100,000.00). 3.2 New Rowars Easement; Restrictive Covenants Agreement. Rowars Trust shall execute and deliver with duly acknowledged signatures the "New Rowars Easement" (as defined below) and the "Restrictive Covenants Agreement" (also as defined below). Rowars shall perform all of the Rowars Obligations contemporaneous with and conditioned upon Degraeve's performance of the Degraeve Settlement Obligations, Figges' and Thomas K. Figge's performance of the Figge Settlement Obligations (as defined below), and Pitkin County's performance of the Pitkin County Settlement Obligations (as defined below). 4. Figges' Settlement Obligations. The " Figge Settlement Obligations" shall consist of the following: 4.1 Payment of Settlement Amount. Figges and Thomas K. Figge, on behalf of themselves and their heirs, successors and assigns, hereby agree to pay. to Pitkin County the total sum of Four Hundred and Twenty-Five Thousand Dollars and no /100 ($425,000.00) (the " Figge -3- BUS_RE\3824379.1 J Settlement Amount ") payable by the Figges' delivery to Pitkin County of the Figge Settlement Amount to Pitkin County in Good Funds. 4.2 New Sesame Street Easement; Deed Restriction. Figges shall execute and deliver with duly acknowledged signatures the "New Sesame Street Easement" (as defined below) and the "Restrictive Covenants Agreement" (also as defined below). Figges and Thomas K. Figge shall perform all of the Figge Settlement Obligations contemporaneous with and conditioned upon Degraeve's performance of the Degraeve Settlement Obligations, Rowars' performance of the Rowars Obligations, and Pitkin County's performance of the Pitkin County Settlement Obligations (as defined below). 5. Pitkin County's Settlement Obligations. The "Pitkin County Settlement Obligations" shall consist of the following: 5.1 Modification of Sesame Street Easement. Access to the Degraeve Property and the Figge Property is over and through the Mollie Gibson Park Property and is pursuant to that certain Access Easement recorded February 4, 1993 in Book 702 at Page 756, Pitkin County, Colorado between Pitkin County and Barry C. Siegel and Sharon L. Siegel (the "1993 Easement ") and that certain Easement Agreement dated January 27, 2006 and recorded February 17, 2006 as Reception No. 520969, Pitkin County, Colorado between Degraeve and Pitkin County (the "2006 Easement "). Pitkin County shall execute and deliver a new easement providing for access to the Degraeve Property and the Figge Property over and through the Mollie Gibson Park Property in the form attached hereto and made a part hereof as "Exhibit D" (the "New Sesame Street Easement "). The New Sesame Street Easement shall supersede and replace in its entirety the 2006 Easement, and shall be on terms and conditions substantially identical to the 1993 Easement as modified by the 2006 Easement, with the following exceptions: (a) The Figges, as the owners of the Figge Property, Figges shall be parties to the New Sesame Street Easement; (b) The New Sesame Street Easement shall provide for perpetual exclusive access to and from the Degraeve Property and the Figge Property over the Mollie Gibson Park Property, while allowing for access by emergency services vehicles, utility vehicles, Salvation Ditch Company vehicles, and Pitkin County vehicles needed to perform weed control, drainage maintenance, fire suppression, habitat enhancement or other non - development related maintenance activities on the Mollie Gibson Park Property; (c) The New Sesame Street Easement shall provide for a perpetual exclusive right for Degraeve and the Figges to install, maintain and replace from time to time, landscaping, including irrigation and utility lines along an area which is ten (10) feet wide, on either side of the existing alignment of the 2006 Easement; and (d) The New Sesame Street Easement shall provide for Degraeve's and the Figges' perpetual right to maintain, repair and replace from time to time the existing entry gate, pillars -4- BUS_RE\3824379.1 Ir �`I and related structures, improvements, and utility lines which are located on the Mollie Gibson Park Property. Upon mutual execution of the New Sesame Street Easement, the New Sesame Street Easement shall be recorded in the real estate records of Pitkin County, Colorado. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of the New Sesame Street Easement, the terms and conditions of the New Sesame Street Easement shall control and prevail. 5.2 New Rowars Easement. Access to the Rowars Property is over and through the Mollie Gibson Park Property and is pursuant to that certain "Dedication of R.O. W. for Road & Utility Purposes" as set forth on the Sunny Park North Boundary Adjustment and Annexation Map recorded August 25, 1987 in Plat Book 20 at Page 2, Reception No. 292269, Pitkin County, Colorado. Pitkin County shall execute and deliver a new easement providing for access to the Rowars Property over and through the Mollie Gibson Park Property along the existing alignment of the driveway which is in place and runs from the Smuggler Mountain Road right of way, over the Mollie Gibson Park Property, to the Rowars Property, in the form attached hereto and made a part hereof as "Exhibit E" (the "New Rowars Easement "). The new Rowars Easement shall provide for a thirty (30) foot wide exclusive right of access to and from the Rowars Property over and across the Mollie Gibson Park Property to the Smuggler Mountain right of way, while allowing for access by emergency services vehicles, utility vehicles, and Pitkin County vehicles needed to perform weed control, drainage maintenance, fire suppression, habitat enhancement or other non - development related maintenance activities on the Mollie Gibson Park Property. Upon mutual execution of the New Rowars Easement, the New Rowars Easement shall be recorded in the real estate records of Pitkin County, Colorado. In the event of any inconsistency between the terms and conditions of this Agreement and the teens and conditions of the New Rowars Easement, the terms and conditions of the New Rowars Easement shall control and prevail. 5.3 Deed Restriction with Respect to Portion of Mollie Gibson Park Property. Pitkin County, together with Degraeve, Rowars, Figges and Rowars Trust shall enter into a deed restriction (the "Restrictive Covenants Agreement ") in the form attached hereto and made a part hereof as "Exhibit F " providing for Pitkin County's covenant and agreement to Degraeve, the Figges, and the Rowars Trust, and their respective successors in interest as the owners of the Degraeve Property, the Figge Property, and the Rowars Property from time to time, that the 1.634 acre portion of the Mollie Gibson Park Property, generally bounded on its sides by Park Circle, Smuggler Mountain Road, the Mascotte U.S.M.S. 5967 Lode Claim, and the Rowars Property (the "Restricted Area ") shall be permanently restricted solely for open space, habitat, and passive recreational uses by the public, and at no time shall improvements of any type (other than drainage facilities related to Smuggler Mountain Road) be constructed thereon. The Deed Restriction shall permit weed control, drainage maintenance, fire suppression, habitat enhancement and other non - development related maintenance activities by Pitkin County on the Mollie Gibson Park Property. Upon mutual execution of the Restrictive Covenants Agreement, the Restrictive Covenants Agreement shall be recorded in the real estate records of Pitkin County, Colorado. In the event of any inconsistency between the terms and conditions of this -5- BUS_RE\3824379.1 Agreement and the terms and conditions of the Restrictive Covenants Agreement, the terms and conditions of the Restrictive Covenants Agreement shall control and prevail. 5.4 Ordinance. The parties recognize that Pitkin County has already enacted Ordinance No. 031 -2010 (the "Ordinance ") approving the terms and conditions of this Agreement, and authorizing the execution, delivery, and performance of this Agreement and all of the Pitkin County Settlement Obligations provided for herein. Pitkin County represents and warrants to Degraeve, Figges and the Rowars Trust that Pitkin County has full authority to enter into and perform its obligations under this Agreement, and that no further action, beyond adoption of the Ordinance, approving this Agreement, are necessary for Pitkin County to enter into this Agreement to and perform its obligations hereunder. Pitkin County shall perform all of the Pitkin County Settlement Obligations contemporaneous with and conditioned upon Degraeve's performance of the Degraeve Settlement Obligations, Rowars' performance of the Rowars Obligations, and Figges' and Thomas K. Figge's performance of the Figge Settlement Obligations. 6. Dismissal and Settlement of Degraeve Lawsuit; Mutual Release of Claims. Degraeve and Pitkin County agree as follows with respect to the Degraeve Lawsuit: 6.1 Degraeve and Pitkin County deny each other's claims with respect to the Degraeve Lawsuit in their entirety. To avoid the time and expense of further litigation, Degraeve and Pitkin County have agreed to enter into this Agreement. By entering into this Agreement, neither Degraeve nor Pitkin County admit any wrongdoing and expressly and affirmatively deny the same. 6.2 On the basis of the foregoing matters described in Section 6.1, Degraeve and Pitkin County desire to mutually and amicably settle the Degraeve Lawsuit between them as set forth herein, including without limitation matters that were raised or could have been raised by Degraeve or Pitkin County in the Degraeve Lawsuit. 6.3 Upon the Parties' performance of the Degraeve Settlement Obligations, the Rowars Obligations, the Figge Settlement Obligations, and the Pitkin County Settlement Obligations, Degraeve and Pitkin County shall immediately thereafter file a Stipulated Motion to Dismiss Degraeve's remaining claim for declaratory relief in the Degraeve Lawsuit with prejudice, with each Party to pay its own costs, expenses and attorneys fees incurred in connection therewith. 6.4 Upon the Parties' performance of the Degraeve Settlement Obligations, the Rowans Obligations, the Figge Settlement Obligations, and the Pitkin County Settlement Obligations, and for and in consideration of the payments, covenants, and promises described in this Agreement, Degraeve and Pitkin County each hereby release, acquit, and forever discharge each other from any and all disputes, claims, demands, causes of action and liability, of any kind or nature whatsoever, known or unknown, fixed or contingent, disclosed or undisclosed, discovered or undiscovered which they ever had, now have, or may have had in the future, arising from any occurrence or circumstance prior to the Effective Date of this Agreement and relating to the matters alleged in the Degraeve Lawsuit or the Mollie Gibson Park Property, and any and all -6- BUS_RE\ 3824379.1 matters or claims alleged or asserted, or which could have been alleged or asserted in the Degraeve Lawsuit. 6.5 Degraeve and Pitkin County agree that this Agreement is the compromise of disputed and unliquidated claims and such compromise is not an admission of liability, and Degraeve and Pitkin County expressly deny the same. 6.6 Degraeve and Pitkin County hereby represent and warrant to the other that neither has made an assignment of any claims being released in connection with this Agreement. 7. Mutual Release of Claims of Figges and Pitkin County. Figges, Thomas K. Figge, and Pitkin County agree as follows with respect to the Figge Purchase Contract: 7.1 Figges, Thomas K. Figge, and Pitkin County hereby acknowledge and agree that upon the Parties' performance of the Degraeve Settlement Obligations, the Rowars Obligations, the Figge Settlement Obligations, and the Pitkin County Settlement Obligations, the Figge Purchase Contract is of no further force or effect. 7.2 Figges, Thomas K. Figge, and Pitkin County deny any claims which each may have with respect to the Figge Purchase Contract in their entirety. To avoid the time and expense of further litigation, Figges, Thomas K. Figge, and Pitkin County have agreed to enter into this Agreement. By entering into this Agreement, neither Figges, Thomas K. Figge, nor Pitkin County admit any wrongdoing and expressly and affirmatively deny the same. 7.3 On the basis of the foregoing matters described in Section 7.2, Figges, Thomas K. Figge, and Pitkin County desire to mutually and amicably settle any disputes or claims with respect to the Figge Purchase Contract as set forth herein. 7.4 Upon the Parties' performance of the Degraeve Settlement Obligations, the Rowars Obligations, the Figge Settlement Obligations, and the Pitkin County Settlement Obligations, and for and in consideration of the payments, covenants, and promises described in this Agreement, Figges, Thomas K. Figge, and Pitkin County each hereby release, acquit, and forever discharge each other from any and all disputes, claims, demands, causes of action and liability, of any kind or nature whatsoever, known or unknown, fixed or contingent, disclosed or undisclosed, discovered or undiscovered which they ever had, now have, or may have had in the future, arising from any occurrence or circumstance prior to the Effective Date of this Agreement and relating to the Figge Purchase Contract, and any and all matters or claims alleged or asserted, or which could have been alleged or asserted with respect to the Figge Purchase Contract. 7.5 Figges, Thomas K. Figge, and Pitkin County agree that this Agreement is the compromise of disputed and unliquidated claims and such compromise is not an admission of liability, and Figges and Pitkin County expressly deny the same. 7.6 Figges, Thomas K. Figge, and Pitkin County hereby represent and warrant to the other that neither has made an assignment of any claims being released in connection with this Agreement. -7- BUS_RE\3824379.1 �7 8. Dismissal and Settlement of Figge Lawsuit; Mutual Release of Claims. Degraeve and Figges agree as follows with respect to the Figge Lawsuit: 8.1 Degraeve and Figges deny each other's claims with respect to the Figge Lawsuit in their entirety. To avoid the time and expense of further litigation, Degraeve and Figges have agreed to enter into this Agreement. By entering into this Agreement, neither Degraeve nor Figges admit any wrongdoing and expressly and affirmatively deny the same. 8.2 On the basis of the foregoing matters described in Section 8.1, Degraeve and Figges desire to mutually and amicably settle the Figge Lawsuit between them as set forth herein, including without limitation matters that were raised or could have been raised by Degraeve or Figges in the Figge Lawsuit. 8.3 Upon the Parties' performance of the Degraeve Settlement Obligations, the Rowars Obligations, the Figge Settlement Obligations, and the Figge Settlement Obligations, Degraeve and Figges shall immediately thereafter file a Stipulated Motion to Dismiss the Figge Lawsuit with prejudice, with each Party to pay its own costs, expenses and attorneys fees incurred in connection therewith. 8.4 For and in consideration of the payments, covenants, and promises described in this Agreement, Degraeve and Figges each hereby release, acquit, and forever discharge each other from any and all disputes, claims, demands, causes of action and liability, of any kind or nature whatsoever, known or unknown, fixed or contingent, disclosed or undisclosed, discovered or undiscovered which they ever had, now have, or may have had in the future, arising from any occurrence or circumstance prior to the Effective Date of this Agreement and relating to the matters alleged in the Figge Lawsuit, and any and all matters or claims alleged or asserted, or which could have been alleged or asserted in the Figge Lawsuit. Such matters expressly include, but are not limited to, Degraeve's prior receipt of the $500,000.00 of Escrowed Funds from Escrow Agent in connection with the Escrow Agreement as described in Recital G above. 8.5 Degraeve and Figges agree that this Agreement is the compromise of disputed and unliquidated claims and such compromise is not an admission of liability, and Degraeve and Figges expressly deny the same. 8.8 Degraeve and Figges hereby represents and warrants to the other that neither has made an assignment of any claims being released in connection with this Agreement. 9. Attorneys Fees. The Parties do not anticipate any further disputes arising out of or related to the Pending Litigation, and the claims being released pursuant to this Agreement. In the event of any breach of this Agreement, the prevailing party in connection with any such claim will also be entitled to an award of reasonable attorney fees and costs incurred in the prosecution or the defense of such claim. Venue for any and all disputes arising out of this Agreement shall be in Pitkin County District Court. -8- BUS_RE\3824379.1 10. Miscellaneous Provisions. This Agreement and all other documents to be delivered hereunder or annexed hereto contain the entire agreement among the Parties relating to the transactions contemplated herein and all other prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged herein. No change, alteration, amendment, modification or waiver of any of the terms or provisions hereof shall be valid unless the same is in writing and signed by all of the Parties. The agreements, representations, covenants and warranties contained in this Agreement or any amendment or supplement hereto, shall survive the termination of the Agreement. The Parties expressly agree that the terms and conditions hereof and the subsequent performance hereunder shall be construed in accordance with and controlled by the laws of the State of Colorado. Descriptive headings are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement. This Agreement may be executed in a number of identical counterparts, and a telecopy or facsimile transmission shall be binding on the Party or Parties whose signatures appear thereon. If so executed, each of such counterparts is to be deemed an original for all purposes, and all such counterparts shall, collectively, constitute one amendment. This Agreement shall be binding upon and shall inure to the benefit of the Parties to it and their respective heirs, legal representatives, successors, and assigns. In the event any one or more of the provisions contained in this Agreement or in any other instrument referred to herein shall, for any reason, be held to be invalid, illegal, or unenforceable, such illegality, invalidity or unenforceability shall not affect any other provisions of this Agreement. If any suit or action shall be instituted to enforce the rights of a Party arising under this Agreement, the prevailing Party shall be entitled to recover from the opposing party reasonable attorneys' fees, expert witness fees and any other costs. This Agreement has been freely negotiated by the Parties hereto with the advice and assistance of counsel. Accordingly, this Agreement shall not be construed more strictly against any party hereto, regardless of which Party drafted all or part of this Agreement. 11. Time for Performance. The Parties shall perform their respective obligations no later than February 11, 2011. -9- BUS_REl'3824379.1 IN WITNESS WHEREOF, the undersigned have executed this Mutual Release and Settlement Agreement as of the date set forth above. DEGRAEV Ai Alain De u' is" Date signed: 21G7 1 1 , STATE OF ` 0 1.atacit ) COUNTY OF il'aiih ) Subscribed and sworn to before me by Alain Degraeve this q �1 day of February, 2011. My commission expires: di a) I i 2 Witness my hand and official seal. 1 -_ , ..a.. Not. Public ` - GER ` tare ��� Q' J 7 V �6p i >�, ti • y� ...... STA ; - -10- BUS_RE\3824379.1 �0 ROWARS TRUST: CHARLES M. ROWARS AS TRUSTEE OF THE RESTATED AND AMENDED CHARLES M. ROWARS REV CABLE TRUST DATED APRIL 28, 1992 By: / Trustee Date signed: g 44 STATE OF qtlincicit _ ) COUNTY OF n ) Subscribed and sworn to before me by Charles M. Rowars as Trustee of the Restated and Amended Charles M. Rowars Revocable Trust Dated April 28, 1992 this 9* day of February, 2011. My commission expires: .7 44i /j 3 , Witness my hand and official seal. G /74 Not?ry Public r O ERQ . 0 '' et et , e jk stet ....... S I ■ k , STA`E -11 BUS_RE\3824379.1 31 FIGG Swat IalV Date signed- \S 2 L \ STATE OF f1Pca,.�� ) COUNTY OF tlbl.0 Lc" ) Subscribed and sworn to before me by Jennifer N. Figge this? day of February, 2011. My commission expires: e$ -3t' 20 t� Witness hand and official seal. Doc. Date: _ e4- ) 0 # Pages 1 Z Notary Public Notary Na ' orua.• 5 Dods First Circuit Doc. Description _ V'j U 14 4 •4 "'' 4.0ci fe -- 1- - -,Jejtje Alter-Me 2-1.2 Notary Signature Data -12- BUS_RE\3821737.1 5 /k RICHARD R. HORST, AS TRUSTEE OF THE THOMAS K. FIGGE QUALIFIED PERSONAL RESIDENCE TRUST By: ?Ai Richard R. Horst, Trustee Date signed: Z 7 — / / STATE OF X °WM ) COUNTY OF .Sc c a ) Subscribed and sworn to before me by Richard R. Horst as Trustee of The Thomas K. Figge Qualified Personal Residence Trust this 7 day of February, 2011. My commission expires: Witness my hand and official seal. CaamWio JEFFR EY W. PAUL 1 52756 t Yi mar 1 n Expi January *Commission 177, 2014 a No . Public -13- BUS_RE13821737.1 33 RICHARD R. HORST, AS TRUSTEE OF THE THOMAS K. FIGGE QUALIFIED PERSONAL RESIDENCE TRUST By: Richard R. Horst, Trustee Date signed: STATE OF ) ) COUNTY OF ) Subscribed and sworn to before me by Richard R. Horst as Trustee of The Thomas K. Figge Qualified Personal Residence Trust this day of February, 2011. My commission expires: Witness my hand and official seal. Notary Public Thomas K. Figge Date signed: STATE OF ) ) COUNTY OF ) Subscribed and swam to before me by Thomas K. Figge this _ day of February, 2011. My commission expires: Witness my hand and official seal. Notary Public -13- SUS_RE1W4379.I 3 `� PITKIN COUNTY: BOARD OF COUNTY COMMISSIONERS, PITKIN COUNTY, COLO' o; Signa e - 2raa r r RkAtivJ s Name g- / (j Title Date signed: - 9 - `D- 6 t 1 STATE OF 0,06(w-to ) COUNTY OF 2t1-i•Sit ) �s /I Subscribed and swom to before me by Reit I L • v rl (. ( 1 rwem&,w of Board of County Commissioners of Pitkin County, this '1 day of February, 2011. My commission expires: 1– /5 70/2— Witness my hand and official seal. ( LINDA 4 otary Public GUSTAFSONI S • , My Commbdon Wins 01115/1012 -14- BUS_RE13824379. I 3 , Exhibit A to Settlement and Release Agreement (Legal Description of Degraeve Property) Lot 2, ASPEN ELECTRIC SUBDIVISION, according to the Plat thereof recorded February 19, 1993 in Plat Book 30 at Page 85 as Reception No. 354093 and Amended Plat of Aspen Electric Subdivision recorded September 10, 2003 in Plat Book 67 at Page 6 as Reception No. 488179, and Lot Line Adjustment Plat of Lot 5, Sunny Park North Subdivision and Lot 2, Aspen Electric Subdivision recorded June 24, 2005 in Plat Book 73 at Page 72 as Reception No. 510454, and the Lot Line Adjustment Plat of Lot 2, Aspen Electric Subdivision and Midland Park Subdivision recorded February 8, 2011 in Plat Book 96 at Page 11, and Reception No. 577487, Pitkin County, Colorado. -15- BUS_RE\3824379.1 Exhibit B to Settlement and Release Agreement (Legal Description of Mollie Gibson Park Property) KN ALL MEN BY THESE PRESENTS THAT THE BOARD OF COUNTY'.; :. ::`:" . :COMMISSIONERS OF PITKIN COUNTY BEING THE OWNER OF : PITKIN COUNTY COLORADO DESCRIBED AS FOLLOWS: • THE MOLLIE GIBSON PARK PARCEL IS LOCATED IN THE SE•1 /4."0F.,....: • SECTION 7 TOWNSHIP IO SOUTH RANGE 84 WEST OF THE SIXTH PRINCIPAL MERIDIAN AND MORE PARTICULARLY DESCRIBED' AS ..;FOLLOWS:. :.BEG:INNING. AT. THE NORTHEASTERLY REENTRANT CORNER OF THE : '.: •.MOLLSE.GIBSON PARK PARCEL IDENTICAL. WITH THE SOUTHWESTERLIY :. :. ... CCOONER .0F`THE SMUGGLER MINE SUBDIVISION AND IDENT <I.CAL;WITH. 'CORNER NO:. 2 OF SMUGGLER .11. S . 1656 MARKED ON 'THE GROUND: WITH• .IN.CH.DIAMETER REBAR WITH A 1/4 INCH. DIAWET O R.._YELLOW. .N • CAP :MOUNTED THEREON FOUND IN PLACE WHENCE 'CORNER : s:'3'_;.OF': . .MOLLIE.GIBSON M.S. 4281 AM. AN ORIGINAL MARKED'STONE.F?UNO. : ' .i ' r- IN.PLACE.BEAR$ SOUTH 34 13'56' EAST 10,00 FEET AND WHENCE:THE .' , :CENTER CORNER OF SAID SECTION 7 B£ARS`NORTH 40 °54'30`: WEST .. 2484,68 FEET: . THENCE NORTH 56 °36'26' EAST 48.16 FEET: • THENCE SOUTH 45 °30'00' EAST 147.18 FEET: THENCE. SOUTH 45 °30'00' WEST 485.65 FEET: THENCE NORTH 67 °27'17 WEST 186.82 FEET: THENCE NORTH 41 °54'58' WEST 200.60 FEET: THENCE NORTH 38 °00'00' EAST 135.56 FEET: THENCE NORTH 43 °54'35' WEST 188.89 FEET: THENCE NORTH 46 °05'25' EAST 65.00 FEET; • THENCE NORTH 05 °58'23' EAST 224.13 FEET: THENCE NORTH 40 °28 WEST 59.52 FEET: THENCE NORTH 47 °37 WEST 48.47 FEET: THENCE NORTH 55 °4135' EAST 241.73 FEET: TO THE POINT OF BEGINNING —16— BUS_RE\3824379.1 '31 Exhibit C to Settlement and Release Agreement (Legal Description of Figge Property) Lot 5, Lot Line Adjustment Plat of Lots 5 and. 7, Sunny Park North Subdivision, according to the Plat thereof recorded February 7, 2000 in Plat Book 52 at Page 46 as Reception No. 440210 and according to the Lot Line Adjustment Plat of Lot 5, Sunny Park North Subdivision and Lot 2, Aspen Electric Subdivision recorded May 24, 2005 in Plat Book 73 at Page 72 as Reception No. 510454, Pitkin County, Colorado. -17- BUS_RE\3824379.1 Exhibit D to Settlement and Release Agreement (New Sesame Street Easement) • -18- BUS_RE13824379.1 3 q EASEMENT AGREEMENT THIS EASEMENT AGREEMENT (the "Easement Agreement ") is made this /Daday of rt i ! , 2011 between CHARLES M. ROWARS AS TRUSTEE OF THE RESTATED AND AMENDED CHARLES M. ROWARS REVOCABLE TRUST DATED APRIL 28, 1992 (the "Rowars Trust ") and BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, a body corporate and politic ( "Pitkin County "). RECITALS Whereas, Pitkin County is the owner of a certain parcel of land located within Pitkin County, Colorado as legally described on "Exhibit A" attached hereto and made a part hereof (the "Mollie Gibson Park Property "). Whereas, Rowars Trust is the owner of certain improved real property familiarly known as 131 Smuggler Mountain Road, Aspen, Colorado 81611 and legally described as Lot 7, Sunny Park North Subdivision, according to the Sunny Park North Adjustment and Annexation Map thereof recorded in Plat Book 20 at Page 2, Reception No. 292269, as amended by the Lot Line Adjustment of Lots 5 and 7, Sunny Park North Subdivision, according to the Plat thereof recorded February 7, 2000 in Plat Book 52 at Page 46 as Reception No. 440210, Pitkin County, Colorado (the "Rowars Property "); Whereas, access to Rowars Property is from Smuggler Mountain Road and over and through the Mollie Gibson Park Property pursuant to that certain "Dedication of R.O. W. for Road & Utility Purposes" as set forth on the Sunny Park North Boundary Adjustment and Annexation Map recorded August 25, 1987 in Plat Book 20 at Page 2, Reception No. 292269, Pitkin County, Colorado (the "Existing Access Right of Wav "); Whereas, by this Easement Agreement, Pitkin County and Rowars Trust desire to amend, restate, and supersede and replace in its entirety the Existing Access Right of Way with this Easement Agreement as provided for herein. NOW, THEREFORE, for a good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Pitkin County and Rowars Trust hereby enter into this Easement Agreement. 1. Amendment and Existing Access Right of Way. By way of this Easement Agreement, Pitkin County, as the owner of the Mollie Gibson Park Property and Rowars Trust and its successors and assigns, as the owner of Rowars Property, hereby amend, restate, and supersede and replace in its entirety the Existing Access Right of Way with the terms and conditions of this Easement Agreement. 2. Grant of Driveway Access and Landscaping Easements. Subject to: (a) the reserved rights of Pitkin County as set forth in Section 3 immediately below; and (b) all prior reservations, restrictions, easements, exceptions and encumbrances of record, Pitkin County Page 1 RECEPTION #: 577585, 02/10/2011 at 03:57:30 PM, sos_xe \3s2as2zi 1 OF 7, R $0.00 Doc Code EASEMENT Janice K. Vos Caudill, Pitkin County, CO 0 hereby grants, transfers and conveys unto Rowars Trust and its successors and assigns forever in the ownership of Rowars Property a perpetual, exclusive easement and right -of -way which is fifteen (15) feet on either side of the centerline of the existing driveway now in place, running from the edge of the road improvements comprising Smuggler Mountain Road to the northern boundary of the Rowars Property, including but not limited to, the right to install, maintain, and replace asphalt or gravel road surfaces thereon, to re -grade and re -align such surfaces from time to time, to install, maintain and replace a snowmelt system thereon, and the right to install, maintain and replace from time to time, lighting and landscaping, including irrigation and utility lines. (a) The easement granted herein shall be for the use and benefit of and shall run with the title to the Rowars Property. (b) Rowars Trust accepts the easements based upon the condition of the Smuggler Mountain Road as it exists on the date of this Easement Agreement, and shall make no demands upon Pitkin County for any improvement to the condition of the access at any time. (c) Rowars Trust shall assume all liability based upon the conditions of the easements granted herein , and Pitkin County shall not be liable for damage caused to persons or property caused by the condition of the easements at any time or by vehicular or pedestrian traffic on the driveway or other use thereof. Rowars Trust, on behalf of itself and its successors and assigns, agrees to defend, indemnify and hold harmless Pitkin County and its successors and assigns against any and all claims, demands, causes of action and liability arising out of the condition of the easements set forth herein, or arising out of any and all actions it takes on the Mollie Gibson Park Property. (d) The rights, duties and obligations herein contained shall inure to the benefit of and be binding upon the parties hereto, and their successors and assigns. (e) Subject to all prior reservations, restrictions, easements, exceptions and encumbrances of record, Pitkin County warrants and agrees to defend the title to the easement as conveyed herein. 3. Pitkin County's Reserved Rights. Notwithstanding Pitkin County's grant, transfer and conveyance to Rowars Trust of the rights as set forth in Section 2 immediately above, Pitkin County reserves a right of vehicular and pedestrian access over all of the lands encumbered by the Driveway Access and Landscaping Easements from time to time for the following purposes: (a) the repair, maintenance and replacement of existing drainage facilities, utility service lines and related facilities located from time to time on the Mollie Gibson Park Property; (b) performance of weed control, drainage maintenance, fire suppression, habitat enhancement or other non - development related maintenance activities on the Mollie Gibson Park Property. Said non - development related maintenance activities may include, but are not limited to: (i) reclamation and management activities required pursuant to the Partial Consent Decree with Pitkin County dated March 24, 1994 and recorded April 5, 1995 in Book 777 at Page 910, Pitkin County, Colorado, (ii) reclamation and management activities which may be ordered by a state Page 2 BUS_RE\3824377.1 A( or federal agency or court of competent jurisdiction, (iii) reclamation and management activities which may be necessary to manage subsidence or otherwise protect public safety or adjacent properties; (c) for emergency vehicles in connection with rescue or other emergency services operations necessary to address threats to life, health, or safety; and (d) for law enforcement vehicles in connection with the patrol or policing of the Mollie Gibson Park Property. Should Pitkin County or its agents damage landscaping or driveway improvements within the easements while exercising rights reserved pursuant to this Section 3, Pitkin County shall cause said improvements to be restored within a reasonable time following the completion of the activities which caused such damage; provided, however, that nothing herein shall be construed to render Pitkin County responsible for actions not taken by Pitkin County or its agents, and Pitkin County specifically reserves its rights under the Colorado Governmental Immunity Act for all such claims. Nor shall anything herein be construed to render a law enforcement or emergency services officer or entity an agent of Pitkin County. The parties agree that nothing herein shall limit the County's authority to, in its sole discretion, manage, maintain and improve Smuggler Mountain Road and the 60 -foot right -of- way for said Road. The County further reserves for the general public the right of pedestrian access over the easements granted herein. 4. Miscellaneous. (a) Notice of Default, Right to Cure. In the event of any default under the provisions of this Easement Agreement, the non - defaulting party shall, prior to the exercise of any right or remedy, give the party alleged to be in default written notice of such default together with the right for a period of ten days after receipt of such notice to cure said default. If an alleged default by its nature is not capable of being cured within the time provided, the party alleged to be in default shall, provided such party is proceeding with all due diligence, have up to an additional twenty (20) days to cure said default: If a default is not cured within the time provided or any extension thereof (which right to cure period shall not under any circumstances exceed in the aggregate thirty (30) days), the non - defaulting party shall then and thereafter be free to pursue any right or remedy allowed by this Easement Agreement or otherwise by law. (b) Remedies. Each party shall have the right and power to bring suit in its own name for any legal or equitable relief due to lack of compliance with any provisions of this Easement Agreement. If any court proceedings are instituted in connection with the rights of enforcement and remedies provided in this Easement Agreement, the prevailing party shall be entitled to reimbursement of its costs and expenses, including reasonable attorneys' fees, in connection therewith. (c) No Waiver. The failure of either party to insist upon the strict performance of any provisions of this Easement Agreement or to exercise any right or option available to it, or to serve any notice or to institute any action, shall not be a waiver or a relinquishment for the Page 3 BUS_RE\3824377. 1 9 future of any such provision. (d) Amendments in Writing. This Easement Agreement may not be amended, nor may any rights hereunder be waived, except by an instrument in writing executed by the parties hereto and duly recorded in the real estate records of Pitkin County, Colorado. (e) Colorado Law. The interpretation, enforcement or any other matters relative to this Easement Agreement shall be construed and determined in accordance with the laws of the State of Colorado. (0 Correction Documents. In the event any clerical or other errors are found in this Easement Agreement the parties agree to promptly execute, acknowledge, initial and/or deliver as necessary any documentation in order to correct the erroneous document, or description. (g) Binding Effect. All provisions of this Easement Agreement inure to the benefit of and are binding upon the parties hereto, their heirs, successors, assigns and personal representatives. (h) Counterparts and Facsimile Signature. This Easement Agreement may be executed in multiple counterparts each of which shall constitute an original but all of which when taken together shall constitute one and the same document. The parties hereby agree that this Easement Agreement may be offered and/or accepted by facsimile communication and that delivery of facsimile signatures shall be deemed the same as delivery of original signatures. (i) No Waiver of Land Use Requirements. Nothing herein shall be construed to exempt Rowars Trust or its successors or assigns from compliance with any and all requirements of the Pitkin County Code or any other applicable laws governing actions taken within the easements granted herein. The parties specifically acknowledge that the property interests granted herein do not entitle Rowars Trust to install improvements without first complying with the Pitkin County Land Use Code and all other applicable laws. IN WITNESS WHEREOF, the parties have duly executed this Easement Agreement on the date set forth above. Page 4 BUS_RE\3824377.1 ROWARS TRUST: CHARLES M. ROWARS AS TRUSTEE OF THE RESTATED AND AMENDED CHARLES M. ROWARS REVOCABLE DATED APRIL 28, 1992 By: O/ Trus ee Date signed: A[ / ! 4 STATE OF a !D1 a da ) ) COUNTY OF i j / h ) Subscribed and swom to before me by Charles M. Rowars as Trustee of the Restated and Amended Charles M. Rowars Revocable Trust Dated April 28, 1992 this 9n) clay of February, 2011. My commission expires: a LP./ /1 ,.., Witness my hand and official seal. Nottiry Pu __—_,,s100 yo 1, • 1 i�%7 : x td� 0 2Ottjs ,,� 1r. - Page 5 BUS_RE\3824377.1 )0 PITKIN COUNTY: BOARD OF COUNTY COMMISSIONERS PITKIN COUNTY, COLO' ; �_ 4 N 0,S _ _ Title: ; _q, , e;�. Dated: DPj�eJ I , 2011 STATE OF COLORADO ) ) ss COUNTY OF PITKIN ) Tq foregoingg,, instrument as acknowledged before me this / day of February, 2011, by qai.el a d'(ie.l�n. ` i auv tun,' a. ofPitkin County, Colorado. aF note- Witness my hand and official seal. My Commission Expires: 7—/5 -?o/ 2_ . l- L ./LA - - ---_, 'SP Y PVeI''' . Public t ( LINDA t • GUSTAFSON; ' pit Coate Erures 0111512012 Page 6 BUS_RE\3824377.1 7 EXHIBIT A TO EASEMENT AGREEMENT (Legal Description of Mollie Gibson Park Property) KNOW ALL MEN BY THESE PRESENTS THAT THE BOARD OF COUNTY :COMMISSIONERS OF PITKIN COUNTY BEING THE OWNER OF:CERTAINLANDS P:I TKIN COUNTY COLORADO DESCRIAEDAS FOLLOWS: THE MOLLIE GIBSON PARK PARCEL IS LOCATED IN THE SE •1/4.OF. .,:' SECTION 7 TOWNSHIP 10 SOUTH RAW 84 WEST OF . THE .SIXTH PR,I N'CIPAL�MERIDIAN ) AND MORE PARTICULARLY DESCRIBED AS • •..;. FOLLOWS : BEGINNING , ATTHE NORTHEASTERLY REENTRANT CORNER OF THE MOLLIE BSON PARK PARCEL IDENgTg 1 ICAL THE SOUTHWESTERLY, :CORNER SMUGGLER ; T 2EOFMUER U .SS1656M MARKED O I ON THE.' GROUND WITH >. ^:':: A`5/8 INCH DIAMETER REBAR WITH A 11/4 INCH DIAM�ETER :' CAP. MOUNTED THEREON FOUND IN PLACE WHENCE'CORNER • NO. "';;4.;;.DE .h10LLIE. M. S. 4281 AM. AN ORIGINAL MARKED STONE FOUND..:. - :INPLACE.BEARS SOUTH 34 13'56' EAST 10.00 FEET AND WHENCE ;THE CENTER CORNER OF SAID SECTION 7 BEARS NORTH 40 °54'30` WEST 2484 FEET: THENCE NORTH 56 °36'26' EAST 48.16 FEET: THENCE: SOUTH 45 ° 30'00' EAST 147.18 FEET: THENCE SOUTH 45 °30'00' WEST 485.65 FEET: THENCE NORTH 67 °27' WEST 186.82 FEET: THENCE NORTH 41 °54'58' WEST 200.60 FEET: THENCE NORTH 38 °00'00' EAST 135.56 FEET: THENCE NORTH 43 °54'35' WEST 188.89 FEET: THENCE NORTH 46 ° 05'25' EAST 65.00 FEET: THENCE NORTH 05 °58'23' EAST 224.13 FEET: THENCE NORTH 40 °28'10' WEST 59.52 FEET: THENCE NORTH 47 °37'25' WEST 48.47 FEET: THENCE NORTH 55 °41'35' EAST 241.73 FEET: TO THE POINT OF BEGINNING Page 7 BUS_RE\3824377.1 1 C AMENDED AND RESTATED EASEMENT AGREEMENT THIS AMENDED AND RESTATED EASEMENT AGREEMENT (the "Easement Agreement ") amends, restates, and supersedes and replaces in its entirety that certain "2006 Easement" defined and described below and is made this /0 K+day of ,Qanca%/ , 2011, between ALAIN DEGRAEVE and his heirs, successors and assigns ("Degraeve t), whose address is P.O. Box 7975, Aspen, Colorado 81612, JENNIFER N. FIGGE, INDIVIDUALLY, AND RICHARD R. HORST AS TRUSTEE OF THE THOMAS K. FIGGE PERSONAL RESIDENCE TRUST, and their successors and assigns with the address of 200 Sesame Street, Aspen, Colorado 81611 (collectively "Figges "), and the COUNTY OF PITKIN, COLORADO, A POLITICAL SUBDIVISION and its successors and assigns ( "Pitkin County "), with an address of 530 East Main Street, Aspen, Colorado 81611. RECITALS Whereas, Pitkin County is the owner of a certain parcel of land located within Pitkin County, Colorado as legally described on "Exhibit A" attached hereto and made a part hereof (the "Mollie Gibson Park Property "). Whereas, Figges are the owners of Lot 5, Lot Line Adjustment Plat of Lots 5 and 7, Sunny Park North Subdivision, according to the Plat thereof recorded February 7, 2000 in Plat Book 52 at Page 46 as Reception No. 440210 and according to the Lot Line Adjustment Plat of Lot 5, Sunny Park North Subdivision and Lot 2, Aspen Electric Subdivision recorded May 24, 2005 in Plat Book 73 at Page 72 as Reception No. 510454 ( "the Figge Property"). Whereas, Degraeve is the owner of certain improved real property legally described as set forth on "Exhibit B" attached hereto and made a part hereof, and familiarly known as 210 Sesame Street, Aspen, Colorado 81611, situate in the County of Pitkin, State of Colorado (the "Degraeve Property "). Whereas, Pitkin County as the owner of the Mollie Gibson Park Property and Barry C. Siegel and Sharon L. Siegel, as the previous owners of a portion of the Degraeve Property previously entered into that certain Access Easement (the "1993 Easement ") recorded February 4, 1993 in Book 702 at Page 756, Pitkin County, Colorado. Whereas, Degraeve and Pitkin County are parties to a civil action pending in Pitkin County District Court, Board of County Commissioners v. Degraeve, Case No. 05 CV 141 - (the "Pending Litigation "). In 2006, Degraeve and Pitkin County previously entered into a partial settlement of the Pending Litigation and pursuant to such partial settlement, Pitkin County granted Degraeve a non - exclusive easement across the Mollie Gibson Park Property which partially modified the location of the 1993 Easement, all in that certain easement agreement dated January 27, 2006 and recorded February 17, 2006 as Reception No. 520969, Pitkin County, Colorado ( "2006 Easement "). RECEPTION #: 577584, 02/10/2011 at Page 1 03:57:29 PM, 1 OF 11, R $0.00 Doc Code EASEMENT Janice IC Vos Caudill, Pitkin County, CO BUS_RE13824378.1 11 ? Whereas, Degraeve and Pitkin County have now reached a complete settlement of the Pending Litigation and desire to amend, restate, and supersede and replace in its entirety the 2006 Easement with this Easement Agreement as provided for herein. Whereas, the parties hereto represent to one another that they have full authority to enter into this Easement Agreement. NOW, THEREFORE, for a good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Pitkin County, Degraeve and Figges hereby enter into this Easement Agreement. 1. Amendment and Restatement of 2006 Easement. By way of this Easement Agreement, Pitkin County, as the owner of the Mollie Gibson Park Property, Degraeve and Degraeve's heirs, successors and assigns, as the owner of the Degraeve Property, and Figges and Figges' heirs, successors and assigns, as the owners of the Figge Property, hereby amend, restate, and supersede and replace in its entirety the 2006 Easement, with the terms and conditions of this Easement Agreement. Other than the easement alignment, the terms of the 1993 Easement shall remain in effect unless specifically modified herein. 2. No Vacation or Modification of Dedication of Public Right of Wav Over City Property. Pitkin County, Degraeve and Figges hereby agree that the dedication of a public right of way for roadway, drainage and utility purposes over lands owned by the City of Aspen as set forth on the Plat of the Sunny Park North Boundary Adjustment and Annexation Map, recorded in Plat Book 20 at Page 2, Pitkin County, Colorado shall not be affected or modified by this Easement Agreement. 3. Grant of Driveway Access and Landscaping Easements. Subject to: (a) the reserved rights of Pitkin County as set forth in Section 4 immediately below; (b) all prior reservations, restrictions, easements, exceptions and encumbrances of record, Pitkin County hereby grants, transfers and conveys unto Degraeve and Figges and their respective heirs, successors and assigns forever in the ownership, respectively, of the Degraeve Property and the Figge Property the following "Driveway Access and Landscaping Easements ": (1) a perpetual exclusive easement and right -of -way which is ten (10) feet on either side of the line identified and described as "DRIVE EASEMENT" on the attached "Exhibit C ", including but not limited to the right to install, maintain, and replace asphalt or gravel road surfaces thereon and to re- grade and re -align such surfaces from time to time, and to install, maintain and replace a snowmelt system thereon, (2) a perpetual exclusive easement and right -of -way to install, maintain and replace from time to time, lighting and landscaping, including irrigation and utility lines along an area which is an additional ten (10) feet on either side of the Drive Easement, and (3) a perpetual exclusive easement and right -of -way to maintain, repair and replace from time to time the existing entry gate, pillars and related structures, improvements, and utility lines located on the Mollie Gibson Park Property at the location shown on the attached Exhibit C . (a) The easements granted herein shall be for the use and benefit of and shall run with the title to Degraeve Property and the Figge Property. Page 2 BUS_RE\3824378. 1 Y(1 (b) Degraeve and Figges accept the easements based upon the condition of the Smuggler Mountain Road as it exists on the date of this Easement Agreement, and shall make no demands upon Pitkin County for any improvement to the condition of the access at any time. (c) Degraeve and Figges shall assume all liability based upon the condition of the Driveway Access and Landscaping Easements, and Pitkin County shall not be liable for damage caused to persons or property, including the interests of the Salvation Ditch Company, caused by the condition of the road at any time or vehicular or pedestrian traffic on the Driveway Access and Landscaping Easements or other use thereof. Degraeve and Figges, on behalf of themselves and their successors and assigns, agree to defend, indemnify and hold harmless Pitkin County against any and all claims, demands, causes of action and liability arising out of: (a) the condition of the easements set forth herein, and (b) any and all actions they take on the Mollie Gibson Park Property. (d) The rights, duties and obligations herein contained shall inure to the benefit of and be binding upon the parties hereto, their heirs, successors and assigns. Subject to all prior reservations, restrictions, easements, exceptions and encumbrances of record, Pitkin County warrants and agrees to defend the title to the Driveway Access and Landscaping Easements as conveyed herein. 4. Pitkin County's Reserved Rights. Notwithstanding Pitkin County's grant, transfer and conveyance to Degraeve and Figges of the rights as set forth in Section 3 immediately above, Pitkin County reserves a right of vehicular and pedestrian access over all of the lands encumbered by the Driveway Access and Landscaping Easements from time to time for the following purposes: (a) the repair, maintenance and replacement of existing drainage facilities, utility service lines and related facilities located from time to time on the Mollie Gibson Park Property; (b) performance of weed control, drainage maintenance, fire suppression, habitat enhancement or other non - development related maintenance activities on the Mollie Gibson Park Property. Said non - development related maintenance activities may include, but are not limited to: (i) reclamation and management activities required pursuant to the Partial Consent Decree with Pitkin County dated March 24, 1994 and recorded April 5, 1995 in Book 777 at Page 910, Pitkin County, Colorado, (ii) reclamation and management activities which may be ordered by a state or federal agency or court of competent jurisdiction, (iii) reclamation and management activities which may be necessary to manage subsidence or otherwise protect public safety or adjacent properties; (c) for emergency vehicles in connection with rescue or other emergency services operations necessary to address threats to life, health, or safety; and (d) for law enforcement vehicles in connection with the patrol or policing of the Mollie Gibson Park Property. Should Pitkin County or its agents damage landscaping or driveway improvements within the easements while exercising rights reserved pursuant to this Section 4, Pitkin County shall cause said improvements to be restored within a reasonable time following the completion of the activities which caused such damage; provided, however, that nothing herein shall be construed Page 3 BUS_RE\3824378. I , /q to render Pitkin County responsible for actions not taken by Pitkin County or its agents, and Pitkin County specifically reserves its rights under the Colorado Governmental Immunity Act for all such claims. Nor shall anything herein be construed to render a law enforcement or emergency services officer or entity an agent of Pitkin County. The parties agree that nothing herein shall limit the County's authority to, in its sole discretion, manage, maintain and improve Smuggler Mountain Road and the 60 -foot right -of- way for said Road. The County further reserves for the general public the right of pedestrian access over the easements granted herein. Additionally, Degraeve and Figges expressly acknowledge and agree that Pitkin County's grant, transfer and conveyance to Degraeve and Figges of the Driveway Access and Landscaping Easements as set forth in Section 3 immediately above shall at all times be subject to any rights of the Salvation Ditch Company in connection with the Salvation Ditch as the same is presently located on the Mollie Gibson, Park Property. 5. Compliance with Applicable Laws. Nothing herein shall be construed to exempt Figges, Degraeve, or their respective successors or assigns from compliance with any and all requirements of the Pitkin County Code or any other applicable laws governing actions taken within the easements granted herein. The parties specifically acknowledge that the property interests granted herein do not entitle any person to install improvements without first complying with the Pitkin County Land Use Code and all other applicable laws. IN WITNESS WHEREOF, the parties have duly executed this Easement Agreement on the date set forth above. DEG Alain De _. Dated: 2/ I Q I , 2011 STATE OF COLORADO ) ) ss COUNTY OF PITKIN The foregoing instrument was acknowledged before me this ' O day of February, by Alain Degraeve. �0 0401111 01 Witness my hand and official NOr ' My Commission Expires: V q9� • No . 'line ' � • • . Page 4 , ip�j r Oilt% BUS_RE13824378.I ice PITKIN COUNTY: BOARD OF COUNTY COMMISSIONERS PITKIN COUNTY, COLO' A 'O vf �1.�.. �.g � _ Title: r _:. 2 !„_1,,, — im � ' . � ►1 C� , 66CC-. Dated: O , 2011 __# STATE OF COLORADO ) ) ss COUNTY OF PITKIN ) Tl}g foregoin i was ac�iowledged before me this 9 -614 " clay of February, 2011, by 4 .tkcl t. 1licL4rcls as ► 0 e t; w.,w ,wo of Pitkin County, Colorado. Witness my hand and official seal. My Commission Expires: . 7 -/5 ?v /2_ ' Ill et t4 ., • o • Public ; j LINDA S ;GUSTAFSON Y My coffin E 07192012 Page 5 BUS_RE\3824378. 1 h l FIGG • ■ e.,11 g Dat 201 1 STATE OF 14-044.7A. ) COUNTY OF (-(o Vo 4 u L 4 ) T�1 Subscribed and sworn to before me by Jennifer N. Figge this ri " day of February, 2011. My commission expires: 0 Z -3 2° Witness hand and official seal. s_ 6 ° 4 Notary Public Doc. Date: 2 ' � __Za � " q Pages Notary Name: llon;as S. Dods First circuit Doc. Description A M 2PJp O Q w� . I i E 14 Se wt 4irw r ksen -r Notary Signature Z. 0 20 pate Page 6 BUS_RE \3821721.1 y RICHARD R. HORST, AS TRUSTEE OF THE THOMAS K. FIGGE QUALIFIED PERSON RESIDENCE // TRUST/ By: I t ( � ¢��� ustee Dated:. .t.Qru,u. . n.i 9 , 2011 STATE OF S ) ) COUNTY OF Sc. et ) Subscribed and sworn to before me by Richard R. Horst as Trustee of The Thomas K. Figge Qualified Personal Residence Trust this 5 day of February, 2011. My commission expires: Witness my hand /wand official seal. As a JEFFREY W. PAUL N lic � Co mn N MyCommbalonExpires January 17, 2014 Page 7 BUS_ RE 821721.1 )r3 EXHIBIT A TO AMENDED AND RESTATED EASEMENT AGREEMENT (Legal Description of Mollie Gibson Park Property) KNOW ALL MEN BY THESE PRESENTS THAT THE BOARD OF COUNTY'.'' :COMMISSJONERS OF PITKIN COUNTY BEING THE OWNER OF CERTAIN -IN PITKIN COUNTY COLORADO DESCRIBED, AS FOLLOWS: • THE ) MOLL.IE GIBSON PARK PARCEL IS LOCATED IN • THE SE ,3 /4..OF.,:. ,...:' • SECT JON 7� TOWNSHIP 10 SOUTH 'RANGE 84 WEST O •THE ' S I XTM PRJN'CIPAL MERIDIAN AND MORd PARTICULARLY DESCRIBED AS .` . ;.FOLLOWS • BEGJNNING AT THE NORTHEASTERLY' REENTRANT CORNER OF THE .;' •. • PARK PARCEL IDENTICAL WITH THE SOUTHWESTERLY CO SMUGGLER MINE SUBDIVISION AND IDENTICAL : W :CORNER NO 2.0F SMUGGLER.11 S. 11656 MARKED ON'THE:'G UNO :OTH : 'A 5/8 .IN.CH.DIAMETER REBAR WITH A 1/4 INCH DIANETER..:YELLOW. , ..,: CAP.. MOUNTED THEREON FOUND IN PLACE WHENCE' CORNER' 140:" "I; F':': 1 . .MOLLIEGIBSON M.S. 4281 AM..AN ORIGINAL MARKED'.STONE'.F VND :IN•.PLACE.BEARS SOUTH 34 13'56" EAST 10.00 FEET AND WHEN E THE , :CENTER CORNER OF SAID SECTION 7 BEARS NORTH 40 °54'30" WEST .: 2484,08 FEET: . THENCE NORTH 56 °36'28" EAST 48.16 FEET: ' THENCE SOUTH 45 °30'00' EAST 147.18 FEET: THENCE SOUTH 45 °30'00' WEST 485.65 FEET: THENCE NORTH 67 °27'17" WEST 186.82 FEET: THENCE NORTH 41 °54'58' WEST 200.60 FEET: THENCE NORTH 38 °00'00' EAST 135.56 FEET: THENCE NORTH 43 °54'35' WEST 188.89 FEET: THENCE NORTH 46 °05'25 EAST 65.00 FEET: • THENCE NORTH 05 °58'23' EAST 224.13 FEET: THENCE NORTH 40 °28'10' WEST 59.52 FEET: THENCE NORTH 47 °37'25' WEST 48.47 FEET: THENCE NORTH 55 °41 EAST 241.73 FEET: TO THE POINT OF BEGINNING • Page 8 BUS_RE\3824378.1 l-. EXHIBIT B TO AMENDED AND RESTATED EASEMENT AGREEMENT (Legal Description of Degraeve Property) Lot 2, ASPEN ELECTRIC SUBDIVISION, according to the Plat thereof recorded February 19, 1993 in Plat Book 30 at Page 85 as Reception No. 354093, as amended by the Lot Line Adjustment Plat of Lot 5, Sunny Park North Subdivision and Lot 2, Aspen Electric Subdivision recorded May 24, 2005 in Plat Book 73 at Page 72 as Reception No. 510454, and the Lot Line Adjustment Plat of Lot 2, Aspen Electric Subdivision and Midland Park Subdivision recorded February 8, 2011 in Plat Book 96 at Page 11, and Reception No. 577487, Pitkin County, Colorado. Page 9 BUS_RE\3824378.1 EXHIBIT C TO AMENDED AND RESTATED EASEMENT AGREEMENT (Depiction of Driveway Access and Landscaping Easements) Page 10 BUS RE\3824378.1 _ h � /lP_ • • EXHIBIT C TO THE AMENDED AND RESTATED EASEMENT AGREEMENT DATED: FEBRUARY 7, 2011 ..0 0 40 Go 0 e 7JFffi =rim. p p R OAD l / • "7 / / / D • it ..1..Nn. / 7 / / 11012114 4:7*-- A i COUNTY / � / Y / / e1TX1N \ ' / C01114l4 / / / t / ± / ACCESS EASEMENT CITY 01 J � T / d / o iN " "k �r i'iStko we [[�,�u. j tceir t M�rwxbtMs r'mieMnn'"V00.11n ASTON / TA 1e1MNAi X 021 TK O aixdaW 0 {111 07 / \ y x12 n v01xt xlexa TKO 6 '10 00 N£iI cwE] ae wr r WONT PARK NOUN IILE! / �41/4 y / � OM �I 5] ,t P@ N REAM l 1 •,9'f 10 W \ � / / . � , : #o yT / r i g v:M r. 4 / i °x. ee ] i..o: 11 7010 .me at uae m 150 roix] Or tenxix nax AT 4" / CITY 07 MIN JP I L 0O4 7 RFM = 07 SPEN SURVEY ENGINEERS, INC. LOT 7 vo 1041111 GALENA SMUT ,.....w wlx nwtx caOG,n1 hull 1140101740 10001 000 -0111 DATE JOB 5 l Exhibit E to Settlement and Release Agreement (New Rowars Easement) -19- i / BUS_RE13824379.1 / Exhibit F to Settlement and Release Agreement (Restrictive Covenants Agreement) _20_ BUS_RE13824379.1 / 1 RESTRICTIVE COVENANTS AGREEMENT THIS RESTRICTIVE COVENANTS AGREEMENT (the "Agreement ") is made this /0.-day of febnca/ , 2011 by and among ALAIN DEGRAEVE and his heirs, successors and assigns ( "Degraeve" , whose address is P.O. Box 7975, Aspen, Colorado 81612, Jennifer N. Figge, Individually, and Richard R. Horst as Trustee of the Thomas K. Figge Qualified Personal Residence Trust, and their successors and assigns with the address of 200 Sesame Street, Aspen, Colorado 81611 (collectively " Figge Trust "), CHARLES M. ROWARS AS TRUSTEE OF THE RESTATED AND AMENDED CHARLES M. ROWARS REVOCABLE TRUST DATED APRIL 28, 1992 (the "Rowars Trust ") with an address of 4990 S.W. 52 Street, Suite 201, Davie, Florida 33314 and BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, a body corporate and politic ("Pitkin County "), with an address of 530 East Main Street, Aspen, Colorado 81611. Degraeve, Figge, the Rowars Trust, and Pitkin County may each be referred to herein as a "Party" and collectively as the "Parties." RECITALS Whereas, Pitkin County is the owner of a certain parcel of land located within Pitkin County, Colorado as legally described on "Exhibit A" attached hereto and made a part hereof (the "Mollie Gibson Park Property "). Whereas, Figge Trust is the owner of certain improved real property familiarly known as 200 Sesame Street, Aspen, Colorado and legally described as Lot 5, Lot Line Adjustment Plat of Lots 5 and 7, Sunny Park North Subdivision, according to the Plat thereof recorded February 7, 2000 in Plat Book 52 at Page 46 as Reception No. 440210 and according to the Lot Line Adjustment Plat of Lot 5, Sunny Park North Subdivision and Lot 2, Aspen Electric Subdivision recorded May 24, 2005 in Plat Book 73 at Page 72 as Reception No. 510454 (the " Figge Property "). Whereas, Degraeve is the owner of certain improved real property legally described as set forth on "Exhibit B" attached hereto and made a part hereof, and familiarly known as 210 Sesame Street, Aspen, Colorado 81611, situate in the County of Pitkin, State of Colorado (the "Degraeve Property "). Whereas, Rowars Trust is the owner of certain improved real property familiarly known as 131 Smuggler Mountain Road, Aspen, Colorado 81611 and legally described as Lot 7, Sunny Park North Subdivision, according to the Sunny Park North Adjustment and Annexation Map thereof recorded in Plat Book 20 at Page 2, Reception No. 292269, as amended by the Lot Line Adjustment of Lots 5 and 7, Sunny Park North Subdivision, according to the Plat thereof recorded February 7, 2000 in Plat Book 52 at Page 46 as Reception No. 440210, Pitkin County, Colorado (the "Rowars Property "); Whereas, by this Agreement, the Parties desire to provide for certain covenants and restrictions upon Pitkin County's ownership and use of a portion of the Mollie Gibson Park Page 1 RECEPTION #: 577586, 02/10/2011 at 03:57:31 PM, 1 OF 12, R $0.00 Doc Code EASEMENT BUS _ RE 138243801 Janice K. Vos Caudill, Pitkin County, CO Property for the benefit of the Degraeve Property, the Figge Property and the Rowars Property, all as provided for herein. NOW, THEREFORE, for a good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto hereby enter into this Agreement. 1. Restrictions Upon Mollie Gibson Park Property. Except as expressly provided for herein, Pitkin County and its successors and assigns, as the owner of the Mollie Gibson Park Property, for the benefit of: (1) Degraeve and his heirs, successors and assigns, as the owner of the Degraeve Property, (2) Figge Trust as the owner of the Figge Property, and (3) Rowars Trust, as the owner of the Rowars Property, hereby covenants and agrees that that the 1.6340 acre portion of the Mollie Gibson Park Property (the "Restricted Area "), generally bounded on its sides by Park Circle, Smuggler Mountain Road, the Mascotte U.S.M.S. 5967 Lode Claim, and the Rowars Property, and as legally described on "Exhibit C" attached hereto and made a part hereof is hereby permanently restricted as follows: (a) the Restricted Area is hereby permanently set aside and preserved in its existing natural state for conservation and public enjoyment purposes, and at no time shall Pitkin County, its successors or assigns, or any of their agents construct improvements of any type (other than drainage facilities related to Smuggler Mountain Road) thereon; (b) vehicular access to or through the Restricted Area shall not be permitted, other than as is necessary for access by (i) vehicles used in connection with weed control, drainage, maintenance, fire suppression, habitat enhancement, or other non - development related maintenance activities by Pitkin County, (ii) emergency vehicles in connection with rescue or other emergency services operations necessary to address threats to life, health, or safety, (iii) law enforcement vehicles in connection with the patrol or policing of the Mollie Gibson Park Property; and (iii) by Degraeve, the Figge Trust, the Rowars Trust and their invitees, successors and assigns for access to their respective properties; (c) the Restricted Area shall be open to the public but shall not be used at any time for the establishment of improved hiking, skiing, biking, horse or other trails; and (d) the Deed Restriction shall permit weed control, drainage maintenance, fire suppression, habitat enhancement and other non - development related maintenance activities by Pitkin County on the Mollie Gibson Park Property. 2. Pitkin County's Reserved Rights. Notwithstanding Pitkin County's covenant and agreement to restrict the Restricted Area as provided for in Section 1 immediately above, Pitkin County reserves to itself a right of access thereto solely for purposes of the repair, maintenance and replacement of existing drainage facilities, utility service lines and related facilities located from time to time on the Mollie Gibson Park Property and Pitkin County's performance of weed control, drainage maintenance, fire suppression, habitat enhancement or other non - development related maintenance activities by Pitkin County on the Mollie Gibson Park Property. Said non- development related maintenance activities may include, but are not limited to: (a) reclamation and management activities required pursuant to the Partial Consent Decree with Pitkin County Page 2 BUS_RE\3824380. 1 12 1 dated March 24, 1994 and recorded April 5, 1995 in Book 777 at Page 910, Pitkin County, Colorado, (b) reclamation and management activities which may be ordered by a state or federal agency or court of competent jurisdiction, (c) reclamation and management activities which may be necessary to manage subsidence or otherwise protect public safety or adjacent properties. This Restrictive Covenant Agreement is subject to all prior reservations, restrictions, easements, exceptions and encumbrances of record, and the parties acknowledge and agree that nothing in this Restrictive Covenants Agreement precludes third parties from exercising rights granted pursuant to easements or other interests in the Restricted Area that predate this Restrictive Covenants Agreement. Pitkin County, however, represents and warrants that it has not granted any such unrecorded rights or interests in the Restricted Area to third parties. The parties further agree that nothing herein shall limit the County's authority to, in its sole discretion, manage, maintain and improve Smuggler Mountain Road and the 60 -foot right -of -way for said Road. 3. Miscellaneous. (a) Notice of Default, Right to Cure. In the event of any default under the provisions of this Agreement, the non - defaulting party shall, prior to the exercise of any right or remedy, give the party alleged to be in default written notice of such default together with the right for a period of ten days after receipt of such notice to cure said default. If an alleged default by its nature is not capable of being cured within the time provided, the party alleged to be in default shall, provided such party is proceeding with all due diligence, have up to an additional twenty (20) days to cure said default. If a default is not cured within the time provided or any extension thereof (which right to cure period shall not under any circumstances exceed in the aggregate thirty (30) days), the non - defaulting party shall then and thereafter be free to pursue any right or remedy allowed by this Agreement or otherwise by law. (b) Remedies. Each Party shall have the right and power to bring suit in its own name for any legal or equitable relief due to lack of compliance with any provisions of this Agreement. The parties also agree that the provisions of this Agreement governing the use of the Restricted Area are specifically enforceable by Degraeve, the Figge Trust or the Rowars Trust and that the Parties shall be entitled to injunctive relief to enforce such restrictions. If any court proceedings are instituted in connection with the rights of enforcement and remedies provided in this Agreement, the prevailing party shall be entitled to reimbursement of its costs and expenses, including reasonable attorneys' fees, in connection therewith. (c) No Waiver. The failure of any Party to insist upon the strict performance of any provisions of this Agreement or to exercise any right or option available to it, or to serve any notice or to institute any action, shall not be a waiver or a relinquishment for the future of any such provision. (d) Amendments in Writing. This Agreement may not be amended, nor may any rights hereunder be waived, except by an instrument in writing executed by the parties hereto and duly recorded in the real estate records of Pitkin County, Colorado. (e) Colorado Law. The interpretation, enforcement or any other matters relative to this Agreement shall be construed and determined in accordance with the laws of the Page 3 BUS_RE\3824380.1 / State of Colorado. (f) Correction Documents. In the event any clerical or other errors are found in this Agreement the parties agree to promptly execute, acknowledge, initial and/or deliver as necessary any documentation in order to correct the erroneous document, or description. (g) Binding Effect. All provisions of this Agreement shall run with the land and inure to the benefit of and are binding upon the Parties hereto, their heirs, successors, assigns and personal representatives. (h) Counterparts and Facsimile Signature. This Agreement may be executed in multiple counterparts each of which shall constitute an original but all of which when taken together shall constitute one and the same document. The Parties hereby agree that this Agreement may be offered and/or accepted by facsimile communication and that delivery of facsimile signatures shall be deemed the same as delivery of original signatures. IN WITNESS WHEREOF, the parties have duly executed this Agreement on the date set forth above. DEGRAE : Alain Vv., aeve Dated: 7 l l ' , 2011 STATE OF COLORADO ) ) ss COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this i day of February, 2011, by Alain Degraeve. Witness my hand and official seal. My Commission Expires: , /a. _4. S4 /. Not Public Cptl O ° 0 1 Q . N' ;w° b• Page 4 ,t V , g ktk da _ / BUS_RE\ 3824380.1 PITKIN COUNTY: BOARD OF COUNTY COMMISSIONERS PITKIN COUNTY, COLO' 0 �.�. 4s Title: / ' Ca Dated: OD/at , 2011 STATE OF COLORADO ) ) ss COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this ( day of February, 2011, b7 /ic4el e 1 eityc6as es;- luon,ov rf &7c C of Pitkin County, Colorado. Witness my hand and official seal. My Commission E sires: 7— /5 /Z Plje , 1 LINDA s S, : 'o . Public jGUSTAFSON s Nv Commission EmSes 01!15/2012 Page 5 BUS_RE\3824380. 1 tta Jenm . • Date : 2011 STATE OF 4Aw1.4., ) COUNTY OF fituo(-oLV ) Subscribed and sworn to before me by Jennifer N. Figge this -} day of February, 2011. My commission expires: 0 $ - 3O . 2° 1 3 Witness my d and official seal. Notary Public irst Circuit Doc, Date: z y�.i;20 # Pages - Notary Name: Thomas S. Dods F GSct CT e Doc. Description Date Natry Signature o ,"no Page 6 G BUS_REU821715.1 LP RICHARD R. HORST, AS TRUSTEE OF THE THOMAS K. FIGGE QUALIFIED PERSONAL RESIDENCE TRUST By: el C • ��.. . If st9e Dated: ,c- r nu , 2011 STATE OF 1 . 06 » 9 ) COUNTY OF ) Subscribed and sworn to before me by Richard R. Horst as Trustee of The Thomas K. Figge Qualified Personal Residence Trust this '/ day of /b. -vsr / , 2011. My commission expires: Witness my hand and official seal. J EFFR EY W. PAUL Commksbn Number 1527561 My January i�" No ublic Page 7 BUS_RE\3821715.I ROWARS TRUST: CHARLES M. ROWARS AS TRUSTEE OF THE RESTATED AND AMENDED CHARLES M. ROWARS VOCABLE TRUST DATED APRIL 28, 1992 By: T stee Date signed: girl/ t(/( STATE OF 0 /m a dh ) COUNTY OF / kith ) Subscribed and swom to before me by Charles M. Rowars as Trustee of the Restated and Amended Charles M. Rowars Revocable Trust Dated April 28, 1992 this q m day of February, 2011. My commission expires: a Witness my hand and official seal. a 'la4/13- No Pu lic p O e � 1 be 11 1,0 i t 01 Viernfl Page 8 BUS RE13824380.1 1,1 EXHIBIT A TO RESTRICTIVE COVENANTS AGREEMENT (Legal Description of Mollie Gibson Park Property) KN ALL MEN BY THESE PRESENTS THAT THE BOARD OF COUNTY:''.. `COVIMI$SJONERS OF PITKIN COUNTY BEING THE OWNER OF;CERTAINLANDS -1N PITKIN COUNTY COLORADO DESCRIAEDAS FOLLOWS: THE)1OLLIE GIBSON PARK PARCEL IS LOCATED IN THE SE /4..OF., SECT.I.ON 7� TOWNSHIP 10 SOUTH RANGE 84 WEST OF THE SIXTH ;PRJNCIRAL MERIDIAN, AND MORE PARTICULARLY DESCRIBEDAS .` . ;:FOLLOWS:. .BEGINNIWG,AT.THE NORTHEASTERLY REENTRAMT CORNER OF THE .'::: : - ▪ .MOLLIE.GIBSON PARK PARCEL IDENTICAL, WITH THE SOUTHWESTERLY(..:*::: CORNER•0FrTHE SMUGGLER MINE SUBDIVISION AND .IDEWT:I. L;WiTH 'CO :CORNER NO.: 2 OF SMUGGLER. P1.S. 1656 MARKED ON `THE:°GROUND:.`WITH :A`5/8 INCH DIAMETER REBAR WITH A 1 1/4 INCH. D1^^[1ETER.:YELLL'OW. ::..: ▪ CAP., MOUNTED THEREON FOUND IN PLACE WHENCE 'CORNER NO. F `..MOLLIE M.S. 4281 AM. AN ORIGINAL MARKED'STONE FO :INPLACE.BEARS SOUTH 34 13'56' EAST 10,00 FEET AND WHENCE :THE 'CENTER CORNER OF SAID SECTION 7 BARS NORTH 40 °54'30:` WEST , :,:,..; .., . FEET: . THENCE NORTH 56 °36'26' EAST 48.16 FEET: THENCE SOUTH 45 °30'00' EAST 147.18 FEET: • . . THENCE SOUTH 45 °30'00' WEST 485.65 FEET: THENCE NORTH 67 °27'I7' WEST 186.82 FEET: THENCE NORTH 41 °54'58' WEST 200.60 FEET: THENCE NORTH 35 °00'00" EAST 135.56 FEET: THENCE NORTH 43 °54'35' WEST 188.89 FEET: THENCE NORTH 46 °05'25" EAST 65.00 FEET: THENCE NORTH 05 °58'23' EAST 224.13 FEET: • THENCE NORTH 40 °28'10' WEST 59.52 FEET: THENCE NORTH 47 °37'25' WEST 48.47 FEET: THENCE NORTH 55 °41 EAST 241.73 FEET: TO THE POINT OF BEGINNING Page 9 BU5_RE3824380.1 W EXHIBIT B TO RESTRICTIVE COVENANTS AGREEMENT (Legal Description of Degraeve Property) Lot 2, ASPEN ELECTRIC SUBDIVISION, according to the Plat thereof recorded February 19, 1993 in Plat Book 30 at Page 85 as Reception No. 354093, as amended by the Lot Line Adjustment Plat of Lot 5, Sunny Park North Subdivision and Lot 2, Aspen Electric Subdivision recorded May 24, 2005 in Plat Book 73 at Page 72 as Reception No. 510454, and the Lot Line Adjustment Plat of Lot 2, Aspen Electric Subdivision and Midland Park Subdivision recorded February 8, 2011 in Plat Book 96 at Page 11, and Reception No. 577487, Pitkin County, Colorado. Page 10 BUS_RE3824380. 1 / q EXHIBIT C TO RESTRICTIVE COVENANTS AGREEMENT (Legal Description of Restricted Area) A PARCEL OF LAND SITUATED IN MOLLIE GIBSON PARK PARCEL DESCRIBED IN BOOK 455 AT PAGE 177 IN SECTION 7, TOWNSHIP 10 SOUTH, RANGE 84 WEST OF THE 6 TH PRINCIPAL MERIDIAP COUNTY OF PITKIN STATE OF COLORADO DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF SAID MOLLIE GIBSON PARK PARCEL WHENCE THE CENTER 1/4 OF SAID SECTION BEARS N 30 °43'48 "W 2405.97 FEET; THENCE N 67 °27' 17 "W 186.82 FEET: THENCE N 41 °54'48 "W 35.73 FEET; THENCE 175.21 FEET ALONG A NON TANGENTIAL CURVE TO THE LEFT WHOSE RADIUS IS 290.57 FEET ( CHORD BEARS N 10 °43'43 "E 172.56 FEET); THENCE 92.69 FEET ALONG ANON TANGENTIAL CURVE TO THE LEFT WHOSE RADIUS 1S 90.00 FEET ( CHORD BEARS N 34 °32'11"E 88.65 FEET; THENCE N 05 °01'57 "E 53.82 FEET; THENCE S 26°24'25"E 98.14 FEET; THENCE 85 °12'49 "E 88.09 FEET; THENCE N 30 °58'45 "E 29.58 FEET; THENCEN 85 °12'49 "E 69.34 FEET; THENCE S 17 °33'25 "W 129.83 FEET; THENCE S 02°33'16"W 83.30 FEET THENCE S 40 °01'50 "E 54.03 FEET; THENCE S 45 °30'00 "W 137.86 FEET TO THE POINT OF BEGINNING, CONTAINING 71,194 SQUARE FEET MORE OR LESS. Page 11 BUS_RE\3824380. 1 `^ MOLL IE GIBBON PARK • maTassi 0 TO DEGRAEVE PARCEL N. /z d ti le ] W STONE /4128 HORIZON O ? - CONTROL s 4 r as . CV a $ 10 w 9 0 • `o lin M S O 2 In h� 116985. °12 "E O o co SMUGGLE m h D 34' M d y e 8 ry°• ti o V O ` . 000,- END OF PAVEMENT \. A c O O Ri N 85° 1 2' 49 "E 3 e 0 o 8., N Z o . ry M C K hf I-.. t F. Ve£ b J 2� END OF PAVEMENT h o • y AREA: 71 194 SF '11.634 ACRES )• /- o y a . 1 0 • mo w £c 0 0 M M 0 in T o Q' N 41 0 Q -0 CIL- C Of `V V V 7 0 ° LOT 6 co 0 A LP. co /. • d 2 `?S ,moo e `S • 4 C 7 ./ O S. 7. O ,O • R.O.W.`....... - 7V gO c / 27 88 /)• � P X '7 SUNNY P 'K NORTH N. '2S • W • SUBDI ISION /8 6 . 82 MASCOTTE . MS 5867 . P.0.8. LOT 7\ . PREPARED BY LOT 5 ASPEN SURVEY ENGINEERS, INC. • 210 SOUTH GALENA STREET • .ASPEN COLORADO 81611 PHONE /FAX 19701 925 -3816 DATE JOB 2/11 28146EJ