HomeMy WebLinkAboutbocc.con.155.2011 RECEPTION #: 582003, 08/18/2011 at
11:35:37 AM,
1 OF 5, R $0.00 Doc Code COVEN
Janice K. Vos Caudill, Pitkin Coun CT #/5
RESTRICTIVE COVENANT
REGARDING A DECOMMISSIONING PLAN
FOR THE FABRIZIO MICRO HYDROELECTRIC
GENERATION FACILITY
THIS AGREEMENT is made and entered into this - day of 2011
by Bruce P. Fabrizio, owner of the land known as the Smith Property, 20 Smith Hill Way,
Woody Creek, CO 81656, State Parcel Identification Number 264321100004, and the Board of
County Commissioners of Pitkin County, Colorado (the "County").
1. Recitals.
1.1 Bruce P. Fabrizio (hereinafter the "Declarant ") holds title to a parcel of land
known as 20 Smith Hill Way, Woody Creek, CO, 81656, consisting of 15.73 - acres more
or less and fully described in Exhibit "A" (hereinafter the Property) attached hereto.
1.2 Declarant has received certain land use and development approvals from the
County including: BOCC Resolution 101 -2008; Hearing Officer Determination No. 04-
2004; Administrative Decisions 104 -2005 and 22 -2006.
1.3 Declarant's' Application for a Building permit covered the following
development and redevelopment activities: Placement of a micro hydroelectric generation
facility.
1.4 As apart of its consideration of the request for development approval, the County
has determined that if the micro hydroelectric generation facility is not in continuous use
for more than 1 calendar year for reasons other than low stream flows, disruption to
stream habitat, or drought the structures associated with the generation facility may be
required to be removed or otherwise rendered permanently inoperable. According to
Condition Number 10 of BOCC Resolution 101 -2008, Declarant must record a Covenant
granting the County a non - revocable license to enter the property for decommissioning
the system and record a covenant on the property describing a decommissioning plan and
acknowledge that the property owner shall bear the cost of decommissioning the facility.
NOW THEREFORE, Declarant declares and acknowledges that the following teens,
covenants and conditions shall apply to the affected real property and shall be deemed to run
with the land and be a burden and a benefit to the Declarant, his successors and assigns and any
person owning or acquiring interest in the affected real property and improvements, their
grantees, successors, heirs, executors, administrators, devisees, or assigns:
1. N on- Revocable License to Enter. Declarant hereby grants to the County a non-
revocable license to enter the property for decommissioning the system. Representatives
of the County shall be entitled to enter upon the Property, at reasonable times and upon at
least 48 hours' advance notice to Declarant, or Declarant's representative, in order to
inspect the facility for the sole purpose of determining compliance with the terms and
conditions of this Covenant. Notice of any inspection of the facility by the County shall
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be pursuant to section 11 of this Covenant. Declarant or his representative shall have the
right to be present at any inspection conducted by the County pursuant to this section.
2. Manner and Means of Decommissioning. Decommissioning of the facility will
take place in a manner that will render the system inoperable but at the same time
maintain or enhance the environrnental and scenic health of the site. This will be
accomplished by removing the intake facility, or "Forebay" from the culvert that runs
under State highway 82 and is depicted on the Building permit plans.
3. Cost of Decommissioning. Declarant acknowledges that he, his successors or
assigns shall bear all of the costs of decommissioning the facility, which shall include
rehabilitation of the site.
4. Enforcement. This Covenant shall be specifically enforceable in the courts of the
State of Colorado, by Pitkin County its successors or assigns, by any appropriate action,
legal or equitable. Pitkin County may resort to any and all available legal action,
including but not limited to judicial relief in the form of an injunction regarding
conveyances.
5. Attorney Fees. In the event that the parties resort to litigation with respect to any
or all of the provisions of this Covenant, the substantially prevailing party shall be
awarded damages and costs, including but not limited to reasonable attorney's fees.
6. Sale, Transfer or Conveyance of Property. In the event that the Property or
portion of the Property is sold, transferred and/or conveyed without compliance herewith,
such sale, transfer and/or conveyance shall be null and void and shall confer no title
whatsoever on the purported buyer. Each and every sale, transfer and/or conveyance of
the Property, for all purposes shall be deemed to include and incorporate by this
reference, the covenants herein contained, even without reference therein to this
Covenant.
8. Exclusion. Declarant agrees that the County in no way assumes any obligation
whatsoever for maintaining, repairing, or administering the facility covered by this
Covenant. However, the County shall be entitled to enforce this Covenant.
9. Reserved Rights of Declarant. Declarant shall have all rights to utilize the
Property not specifically limited or restricted by this Covenant; notwithstanding,
Declarant shall take no action which is materially detrimental to the purposes of this
Covenant.
10. Waiver. Failure of the County to exercise any right or remedy granted under this
Covenant shall not have the effect of waiving or limiting the exercise of the County, or of
any other right or remedy or the indication of such right or remedy at any future time.
11. Notices. Any notice which is required to be given under this Covenant shall be
given by mailing the same, certified mail, return receipt requested, properly addressed
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and with postage fully prepaid to any address provided herein or to any subsequent
mailing address of any additional parties, as long as prior written of the change of address
or additional parties has been given to the other parties to this Covenant.
To Declarant:
Bruce P. Fabrizio
1407 Bayside Drive
Corona Del Mar, CA 92625
To the County:
Board of County Commissioners of Pitkin County
530 E. Main Street, 3` Floor
Aspen, CO 81611
With Copies To:
John M. Ely
Pitkin County Attorney
530 E. Main Street, Ste. 302
Aspen, CO 81611
Lance Clarke, Deputy Director
Pitkin County Community Development
130 S. Galena Street, 3` Floor
Aspen, CO 81611
12. Choice of Law. This Covenant and every related document are to be governed by
and construed in accordance with the laws of the State of Colorado.
13. Successors. Except as otherwise provided herein, the provisions and covenants
contained herein shall inure to and be binding upon the heirs, successors and assigns of
the parties.
14. Section Headings. Paragraph or section headings within this Covenant are
inserted solely for convenience of reference, and are not intended to, and shall not
govern, limit or aid in the construction of any terms or provisions contained herein.
15. Further Actions. The parties to this Covenant agree to execute such further
documents and take such further actions as may be reasonably required to carry out the
provisions and intent of this Covenant or any agreement or document relating hereto or
entered into in connection herewith.
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16. Modification. The parties to this Covenant agree that any modification of this
Covenant shall be effective only when made by writings signed by both parties and
recorded with the Clerk and Recorder of Pitkin County, Colorado.
IN WITNESS, WHEREOF, Declarant has executed this instrument as of the Day and
Year above set forth.
DECLA% • T: /
13 . - P. Fabrizio
/
STATE OF COLORADO )
) ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me on JLI n L g' 1 ,
2011, by Bruce P. Fabrizio.
Witness my hand and official seal.
My commission expires 3 9 1 2_O 1 3 .
CAROL NEMIEC
NOTARY PUBLIC Ott z -L 11&4 - .C. -Q—C_
ti STATE OF COLORADO Notary Public
My Commission Ex} ices 03/09/2013
A ST: BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, •LORADO
/ ti % _ dam . '11\
Je: tte Jones Rac -I E. Richards, C , rwoman
De ty Clerk 1 Date: 0 ( a s a k
APPROVED TO FORM:
�— r
John Ely Cm y Houben, Director
County Attorney Community Development
Parcel #264321100004 Page 4 of 5
Exhibit "A"
Legal Description
A tract of land situated In Lots 2 and 7, Section 21, Township 9 South, Range 85 West of the
Sixth Principal Meridian, Pitkin County, Colorado, described as follows:
Beginning at the intersection of Easterly right of way of Colorado Highway No. 82, and the
North line of said Section 21 whence the North Quarter Comer of said Section 21 bears South
89 °04' West 22.82 feet;
thence South 15 °39' East 478.38 feet (calculated) to the right of way described in Book 493 at
Page 984;
thence the following courses along said right of way:
thence South 70 °31' East 241.71 feet:
thence South 59022' East 171.61 feet;
thence South 68 °24' East 176.08 feet;
thence South 71°41' East 116.26 feet;
thence South 48 °22' East 187.39 feet where it departs from said description;
thence North 51°27' East 0.22 feet;
thence the following calls along the County right of way:
thence South 46 °56' East 156.01 feet;
thence South 37 °37' East 150.02 feet where it from said right of way;
thence North 49 °14' East 243.88 feet to the East line of said Lot 7;
thence along the East line of said Lot 7 North 01°12' West 162.62 feet to a point in the Roaring
Fork River;
thence the following courses in said river:
thence North 68 °25' West 185.1 feet;
thence North 46 °30' West 100 feet:
thence North 31°00' West 190 feet:
thence North 05 °00' East 415.88 feet to the North line of said Section 21;
thence along the North line of said Section 21 South 09 °04' West 938.02 feet to the Point of
Beginning.
County of Pitkin, State of Colorado
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