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HomeMy WebLinkAboutbocc.res.070.2011 CONTRACT #J /3 4 / A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO VACATING POSSIBLE ROAD ROUTES ACROSS ASPEN VALLEY RANCH IN CONNECTION WITH THE SETTLEMENT OF ASPEN VALLEY RANCH, LLC V. BOARD OF COUNTY COMMISSIONERS, U.S. DISTRICT COURT CASE NO. 08 CV 02363 - WDM -MJW RESOLUTION #0V -2011 RECITALS 1. In Ordinance No. 021 -2010, the Board of County Commissioners of Pitkin County (the "Board ") authorized the Chair to execute a Settlement Agreement (the "Settlement Agreement ") in order to resolve the litigation in Aspen Valley Ranch, LLC v. Board of County Commissioners, United States District Court Case No. 08 CV 02363 - WDM -MJW (the "Litigation "). Among the questions at issue in the Litigation was whether or not the public has a right to access Red Canyon over certain roads or trails passing through private lands known as Aspen Valley Ranch. 2. Among other things, the Settlement Agreement specifies the location of non - motorized public access routes to Red Canyon, and provides that the County shall vacate and disclaim any interest in other routes of access that might exist across Aspen Valley Ranch. 3. All of the lands affected by this Resolution lie within unincorporated Pitkin County. Pursuant to § 43- 2- 303(2), C.R.S. (2010), this Resolution is necessary to effect a proper vacation of alternate routes of public access that may exist across Aspen Valley Ranch. 4. The potential routes to be vacated by this Resolution are not presently in use as roads or trails. Rather, vacation is necessary to provide formal certainty to Aspen Valley Ranch that the County will not in the future claim new and different routes of access across the Aspen Valley Ranch Property to Red Canyon that are not spelled out in the Settlement Agreement. Nor are there any known utilities lying within the potential routes to be vacated herein. 5. There is no land adjoining these potential rights of access which lacks an established public road or private- access easement connecting said land with another established public road. NOW THEREFORE, be it resolved by the Board of County Commissioners of Pitkin County Colorado, that it does hereby vacate and disclaim interest in any public roads or trails crossing the property legally described in Exhibit A, except as follows: (1) all routes identified as open to the public or to governmental agencies on the Subdivision Exemption Plat dated October 14, 2005, Plat Book 76 page 4 in the records of the Pitkin County Clerk and Recorder's Office, or in the Subdivision Exemption Plat scheduled for recording pursuant to the Settlement Agreement dated February 9, 2011; (2) all easements provided for in the Settlement Agreement and Easements Agreement dated February 9, 2011; and (3) the Chaparral Road. The foregoing excepted interests numbered 1 -3 are not vacated and shall continue in full force and effect as 1 public access routes. This resolution shall not have any effect on any private rights of access across the property described in Exhibit A. INTRODUCED, FIRST READ, AND SET FOR PUBLIC HEARING ON THE 13 DAY OF JULY 2011. NOTICE OF PUBLIC HEAltING PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE / DAY OF d 1/(11,, , 2011. APPROVED UPON SECOND READING AND PUBLIC HEARING ON THE 27 DAY OF JULY 2011. PUBLISHJD AFTER ADOPTI IN THE ASPEN TIMES WEEKLY ON THE DAY OF U 6 - IJ S f , 2011. ATTEST: BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO At i ' �( Jea ftte Jones / Racing Richards Del y Clerk Chair Date: 0 -a tS / g-tn APPROVED AS TO FORM: Christopher G. in Jon P • , cock IF Assistant County Attorney County Manager EXHIBIT • PARCEL A: m HOMESTEADS 1 THRU 9, AH, AGRICULTURAL FACILITIES PARCEL AND PARCELS I .THRU VII, RURAL AND REMOTE PARCELS, according to the Subdivision Exemption Plat ASPEN VALLEY RANCH, recorded October 14, 2005 in Plat Book 76 at Pages 1 thru 18, inclusive, as Reception No. 516274 and Corrected Sheet 1, recorded May 4, 2006 in Plat Book 79 at Page 31 as Reception No. 523731. PARCEL B: A tract of land situated in Lot 1, Section 4, and Lot 1, Section 5, Township 9 South, Range 85 West of the 6 P.M., more fully described as follows: Beginning at a point on the West line of Said Lot 1, Section 5 whence the Northwest corner of said Lot 1, Section 5 bears N 00 °06'08" W 628.22 feet; thence N 00 °06'08" W 628.22 feet to the Northwest corner of said Lot 1, Section 5; thence N 89 °59'59" E 992.08 feet along the North line of said Lot 1, Section 5 and Lot 1, Section 4; thence S 00 °00'00 W 823.12 feet to the center of Dry Woody Creek; thence S 45 °11'00" W 23.22 feet along the center. of Dry Woody Creek; thence S 52 °12'00" W 195.35 feet along the center of Dry Woody Creek; thence S 79 °41'00" W 263.65 feet along the center of Dry Woody Creek; . thence N 56 °00'00" W 676.38 feet to the point of beginning. BEING HISTORICALLY DESCRIBED AS FOLLOWS: A tract of land situated' in Lot 1, Section 4, and Lot 1, Section 5, Township 9 South, Range 85 West of the 6 P.M., more fully described as follows: Beginning at a point on the West line of Said Lot 1, Section 5 whence the witness corner to the Southeast corner of said Section 5 bears S 04 ° 33' E 2572.12 feet; thence N 626.37 feet to the Northwest corner of said Lot 1; thence East 989.82 feet along the North line of said Lot 1, Section 5 and Lot 1, Section 4; thence South 823.52 feet to the center of Dry Woody Creek; thence S 45 °11' W 23.22 feet along the center of Dry Woody Creek; thence 79 °41' W 263.65 feet along the center of Dry Woody Creek'; thence N. 56° W 674.97 feet to the West line of said Lot 1, Section 5, the point of beginning.. • • • AMENDMENT TO SETTLEMENT AGREEMENT This Amendment to Settlement Agreement ( "Amendment ") is made this day of , 2011, between the ASPEN VALLEY RANCH LLC, a Delaware limited liability company AVR "), and the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, a political subdivision of the state of Colorado ( "BOCC" or the "County "). RECITALS A. AVR and the County are parties to that certain Settlement Agreement dated February 9, 2011. B. Paragraph 2(a) of the Settlement Agreement calls for the Parties to finalize and survey the location of certain easements prior to the BOCC approving a vacation resolution. The Parties wish to amend this provision as set forth herein. AMENDMENT TO AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. The Parties shall finalize the alignments and locations of the various easements contained within the Agreement for Grant and Acceptance of Trail Easement at such time as the County, in its sole discretion, determines that it has obtained sufficient approvals, if any, required by applicable laws for construction of trails and other improvements within the various easements. The survey required in Paragraph 2(a) of the Settlement Agreement shall be completed within a reasonable time after the final alignments and locations of the various easements are determined by the Parties. Subject to the foregoing, nothing herein shall relieve AVR of its obligations to survey, construct, and maintain the easements and trails as provided for in the Settlement Agreement and the Agreement for Grant and Acceptance of Trail Easement. The BOCC may, in its sole discretion, extend the time for AVR to fulfill those obligations. 2. Completion of the tasks identified in Paragraph 1 of this Amendment, supra, shall not be a condition precedent to approval of the Vacation Resolution. 3. This Amendment shall affect only those matters specifically discussed above; in all other respects the Settlement Agreement shall remain in full force and effect, as amended by this Amendment. 897903.1 JTMACD 07/26/11 923 AM IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. ASPEN VALLEY RANCH LLC, a Delaware limited liability company By: RV —AVR, LLC, Its Administrative Member By: RESORT V - ••, - URES, LLC, Its Manager By: / ,�// David J. Myler, Atto y Fact for Richard F. Holland, Manager BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO By : " " .-.- OF A I \ , Chair G: \Client\Aspen Valley Ranch \Litigation\Amendment to Settlement Agreement 072611.doc 697903.1 3TMACD 07/26/11 9:23 AM r� li G 6' RECEPTION #: 584110, 11/03/2011 at 04:02:31 PM, '`O�1CrT �.G ` 1 OF 67, R $0.00 Doc Code RESOLUTION Janice K. Vos Caudill, Pitkin County, CO A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO VACATING POSSIBLE ROAD ROUTES ACROSS ASPEN VALLEY RANCH IN CONNECTION WITH THE SETTLEMENT OF ASPEN VALLEY RANCH, LLC V. BOARD OF COUNTY COMMISSIONERS, U.S. DISTRICT COURT CASE NO. 08 CV 02363- WDM -MJW RESOLUTION #t7 -2011 RECITALS 1. In Ordinance No. 021 -2010, the Board of County Commissioners of Pitkin County (the "Board ") authorized the Chair to execute a Settlement Agreement (the "Settlement Agreement ") in order to resolve the litigation in Aspen Valley Ranch, LLC v. Board of County Commissioners, United States District Court Case No. 08 CV 02363- WDM -MJW (the "Litigation "). Among the questions at issue in the Litigation was whether or not the public has a right to access Red Canyon over certain roads or trails passing through private lands known as Aspen Valley Ranch. 2. Among other things, the Settlement Agreement specifies the location of non - motorized public access routes to Red Canyon, and provides that the County shall vacate and disclaim any interest in other routes of access that might exist across Aspen Valley Ranch. 3. All of the lands affected by this Resolution lie within unincorporated Pitkin County. Pursuant to § 43 -2- 303(2), C.R.S. (2010), this Resolution is necessary to effect a proper vacation of alternate routes of public access that may exist across Aspen Valley Ranch. 4. The potential routes to be vacated by this Resolution are not presently in use as roads or trails. Rather, vacation is necessary to provide formal certainty to Aspen Valley Ranch that the County will not in the future claim new and different routes of access across the Aspen Valley Ranch Property to Red Canyon that are not spelled out in the Settlement Agreement. Nor are there any known utilities lying within the potential routes to be vacated herein. 5. There is no land adjoining these potential rights of access which lacks an established public road or private- access easement connecting said land with another established public road. NOW THEREFORE, be it resolved by the Board of County Commissioners of Pitkin County Colorado, that it does hereby vacate and disclaim interest in any public roads or trails crossing the property legally described in Exhibit A, except as follows: (1) all routes identified as open to the public or to governmental agencies on the Subdivision Exemption Plat dated October 14, 2005, Plat Book 76 page 4 in the records of the Pitkin County Clerk and Recorder's Office, or in the Subdivision Exemption Plat scheduled for recording pursuant to the Settlement Agreement dated February 9, 2011; (2) all easements provided for in the Settlement Agreement and Easements Agreement dated February 9, 2011; and (3) the Chaparral Road. The foregoing excepted interests numbered 1 -3 are not vacated and shall continue in full force and effect as 1 public access routes. This resolution shall not have any effect on any private rights of access across the property described in Exhibit A. INTRODUCED, FIRST READ, AND SET FOR PUBLIC HEARING ON THE 13 DAY OF JULY 2011. NOTICE q F PUBLIC HE G PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE /7' DAY OF CJ 0/ , 2011. APPROVED UPON SECOND READING AND PUBLIC HEARING ON THE 27 DAY OF JULY 2011. PUBLISHED AFTER ADOPTIM IN THE ASPEN TIMES WEEKLY ON THE DAY OF (,- U S r , 2011. ATTEST: BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO Jea tte Jones / Rachttl Richards De • ty Clerk Chair � c�g gd I Date: APPROVED AS TO FORM: Christopher G. • • in Jon P cock Assistant County Attorney County Manager (r-- d EXHIBIT PARCEL A: HOMESTEADS 1 THRU 9, AH, AGRICULTURAL FACILITIES PARCEL AND PARCELS I THRU VII, RURAL AND REMOTE PARCELS, according to the Subdivision Exemption Plat ASPEN VALLEY RANCH, recorded October 14, 2005 in Plat Book 76 at Pages 1 thru •18, inclusive, as Reception No. 516274 and Corrected Sheet 1, recorded May 4, 2006 in Plat Book 79 at Page 31 as Reception No, 523731. PARCEL B: A tract of land situated in Lot 1, Section 4, and Lot 1, Section 5, Township 9 South, Range 85 West of the 6 P.M., more fully described as follows: Beginning at a point on the West line of Said Lot 1, Section 5 whence the Northwest corner of said Lot 1, Section 5 bears N 00 °06'08" W 628.22 feet; thence N 00 °06'08" W 628.22 feet to the Northwest corner of said Lot 1, Section 5; thence N 89 °59,'59" E 992.08 feet along the North line of said Lot 1, Section 5 and Lot 1, Section 4; thence S 00 °00'00'' W 823.12 feet to the center of Dry Woody Creek; thence S 45 °11'00" W 23.22 feet along the center of Dry Woody Creek; thence S 52 °12'00" W 195.35 feet along the center of Dry Woody Creek; thence S 79 °41'00" W 263.65 feet along the center of Dry Woody Creek; thence N 56 °00'00" W 676.38 feet to the point of beginning. BEING HISTORICALLY DESCRIBED AS FOLLOWS: A tract of land situated in Lot 1, Section 4, and Lot 1, Section 5, Township 9 South, Range 85 West of the 6th P.M., more fully described as follows: Beginning at a point on the West line of Said Lot 1, Section 5 whence the witness corner to the Southeast comer of said Section 5 bears S 04 ° 33' E 2572.12 feet; thence N 626.37 feet to the Northwest corner of said Lot 1; thence East 989.82 feet along the North line of said Lot 1, Section 5 and Lot 1, Section 4; thence South 823.52 feet to the center of Dry Woody Creek; thence S 45 °11' W 23.22 feet along the center of Dry Woody Creek; thence 79 °41' W 263.65 feet along the center of Dry Woody Creek'; thence N. 56° W 674.97 feet to the West line of said Lot 1, Section 5, the point of beginning.. • AMENDMENT TO SETTLEMENT AGREEMENT This Amendment to Settlement Agreement ( "Amenddment ") is made thisAS: day of 2011, between the ASPEN VALLEY RANCH LLC, a Delaware limited liability company AVR "), and the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, a political subdivision of the state of Colorado ( "BOCC" or the "County"). RECITALS A. AVR and the County are parties to that certain Settlement Agreement dated February 9, 2011. B. Paragraph 2(a) of the Settlement Agreement calls for the Parties to finalize and survey the location of certain easements prior to the BOCC approving a vacation resolution. The Parties wish to amend this provision as set forth herein. AMENDMENT TO AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. The Parties shall finalize the alignments and locations of the various easements contained within the Agreement for Grant and Acceptance of Trail Easement at such time as the County, in its sole discretion, determines that it has obtained sufficient approvals, if any, required by applicable laws for construction of trails and other improvements within the various easements. The survey required in Paragraph 2(a) of the Settlement Agreement shall be completed within a reasonable time after the final alignments and locations of the various easements are determined by the Parties. Subject to the foregoing, nothing herein shall relieve AVR of its obligations to survey, construct, and maintain the easements and trails as provided for in the Settlement Agreement and the Agreement for Grant and Acceptance of Trail Easement. The BOCC may, in its sole discretion, extend the time for AVR to fulfill those obligations. 2. Completion of the tasks identified in Paragraph 1 of this Amendment, supra, shall not be a condition precedent to approval of the Vacation Resolution. 3. This Amendment shall affect only those matters specifically discussed above; in all other respects the Settlement Agreement shall remain in full force and effect, as amended by this Amendment. 897903.1 J2MACD 07/26/11 9 :23 AM IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. ASPEN VALLEY RANCH LLC, a Delaware limited liability company By: RV -AVR, LLC, Its Administrative Member By: RESORT V - - ' S, LLC, Its Manager By: ,./ 1- __ "�`� David J. Myler, Atto -- • in Fact for Richard F. Holland, Manager • BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO By: . 07 1 \ , Chair G: \Client\Aspen Valley Ranch \Litigation\Amendment to Settlement Agreement 072611.doc 897903.1 JTMACD 07/26/11 9:23 AM 2 ic RECEPTION #: 583885, 10/28/2011 at 11:31:43 AM, 1 OF 17, R $91.00 Janice K. Vos Caudill, Pitkin County, CO AGREEMENT FOR GRANT AND ACCEPTANCE OF TRAIL EASEMENT THIS AGREEMENT FOR GRANT AND ACCEPTANCE OF TRAIL EASEMENT (this "Agreement ") is dated as of the 9 of /c6 , 2011, by and between ASPEN VALLEY RANCH LLC, a Delaware limited liability company ( "AVR ") and the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, a political subdivision of the State of Colorado (the "BOCC "). Recitals A. AVR is the owner in fee simple of that certain real property which is legally described in Exhibit A attached hereto (the "AVR Property"). B. The BOCC is the governing body of Pitkin County, Colorado, a political subdivision of the State of Colorado (the "County"), and has certain authority both with respect to land use within the County and with respect to public rights -of -way. C. AVR and the BOCC have agreed in that certain Settlement Agreement dated /Gy/ 9 , 2011 that AVR shall dedicate, grant and convey unto the BOCC certain non = exclusive easements for the benefit of the public, and the BOCC shall accept such dedication, grant and conveyance, subject to and upon the terms and conditions set forth in this Agreement. Agreement NOW THEREFORE, in consideration of the mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the BOCC and AVR hereby agree as follows: 1. Recitals. The Recitals set forth above are incorporated into and made a part of this Agreement. 2. Definitions. In this Agreement, the following terms have the meanings set forth below: (a) "AVR Permittees" means AVR and any current or future owner of any portion of the AVR Property, and their respective successors, assigns, grantees and mortgagees, together with such parties' respective agents, guests, employees, licensees, invitees, contractors, tenants and subtenants, and all persons who now or hereafter own or hold any possessory interest in any portion of the AVR Property, and together with the respective agents, guests, employees, licensees, invitees and contractors of any of the foregoing. RECEPTION #: 583885, 10/28/2011 at 11:31:43 AM, 2 OF 17, Janice K. Vos Caudill, Pitkin County, CO (b) "BLM Property" means the property owned by the Bureau of Land Management adjacent to the AVR Property on the north. (c) "BOCC Permittees" means the BOCC, together with its respective agents, employees, licensees, and contractors, and together with the respective agents, employees, licensees, invitees and contractors of any of the foregoing. (d) "Easement" means either the Maintenance Easement, Parking Easement or the Trail Easement, as indicated by the context in which such term is used. "Easements" means the Maintenance Easement, Parking Easement and Trail Easement, collectively. (e) "Emergency" means an event posing a bona -fide threat to life, health or safety. (f) "Maintenance Easement" has the meaning set forth in paragraph 6 of this Agreement. (g) "Parking Easement" has the meaning set forth in paragraph 4 of this Agreement. (h) "Parking Lots" means the parking lots to be constructed and dedicated pursuant to the Parking Easement, the locations of which are,depicted upon Exhibit B attached hereto and incorporated herein. (i) "Party" means AVR and the BOCC, and their respective successors and assigns. (j) "Records" means the records of the Clerk and Recorder of Pitkin County, Colorado. (k) "Responsible Party" means the party responsible for the payment or performance of any obligations hereunder, as indicated by the context in which such term is used. (1) "Trail Easement" has the meaning set forth in paragraph 3 of this Agreement. 3. Grant of Trail Easement. (a) AVR hereby grants and conveys to the BOCC, for the use and benefit of the public (which shall include AVR Permittees), an irrevocable and perpetual trail easement (the "Trail Easement ") over that portion of the AVR Property depicted on Exhibit B. The Trail Easement shall, among other things, provide access to public lands located in Red Canyon and, in the case of the West Trail, Triangle Peak. The Trail Easement shall be an easement appurtenant to and burdening the ownership of the AVR Property. The Trail Easement includes the following segments: -2- RECEPTION #: 583885, 10/28/2011 at 11:31:43 AM, 3 OF 17, Janice K. Vos Caudill, Pitkin County, CO (i) Segment A (multiple use) — parking lot to west end of Bike/Equestrian Spur (ii) Segment B (multiple use) — Bike/Equestrian Spur (iii) Segment C (limited use) — Headquarters Spur (iv) Segment D (multiple use) — East end of Headquarters Spur to Red Canyon Trail (v) Segment E (multiple use) - West Trail (vi) Segment F (multiple use) — Alternate access along Aspen Valley Ranch Road for use only if access over the West Ranch Trail dedicated by the Aspen School District is unavailable. (b) All Trail Easement segments shall be fifteen feet in width. Trails constructed within the Trail Easement shall be physically separated from any adjacent roadways and, except where terrain features or topography require a narrower or wider trail, the trails themselves shall be approximately four feet in width. The BOCC shall have the right, but not the obligation, to erect within the Trail Easement signage concerning usage of the Parking Lots, Trail Easements and surrounding areas. The Trail Easement may be used and enjoyed by all members of the public for hiking, biking and horseback riding, subject to such reasonable regulations as the BOCC may enact and to the following additional restrictions: (i) No motorized vehicles shall be allowed on any trail segment, except in case of emergencies. (ii) Dogs are allowed on all trail segments if kept on a leash and under control. (iii) No horses or bicycles shall be allowed on the Headquarters Spur, except in case of emergencies. (iv) Hunters, including commercial outfitters, shall be entitled to utilize the Parking Lots described in Section 4, below, and Trail Segments A, B, D and E, during the annual hunting seasons designated by the Colorado Division of Wildlife each year that do not conflict with the winter trail closure from November 1 to May 1. Hunters shall not be entitled to utilize trail segment C at any time. Use of the Parking Lots and Trail Segments by hunters are subject to the following requirements and restrictions: (a) All hunters, including commercial outfitters, must obtain a reservation in order to utilize the Parking Lots and Trail Segments at least seven (7) days prior to the date on which the hunting party departs from the Parking Lots. No reservation shall be required to return to the Parking -3- 1 RECEPTION #: 583885, 10/28/2011 at 11:31:43 AM, 4 OF 17, Janice K. Vos Caudill, Pitkin County, CO Lots. A reservation shall be made with the Myler Law Firm, Basalt, Colorado (or such other person or entity as the County may designate) by telephone or email. The hunting party shall be required to provide copies of hunting licenses for any individual carrying a weapon. (b) The number of hunter reservations shall be limited to one hundred (100) individuals, including guides, per calendar year and shall be confirmed on a first come, first served basis. Reservations will not be accepted before June 1 of the year in which a hunting party will utilize the Parking Lots and trail. (c) All commercial outfitters shall be licensed as such by the State of Colorado. (d) When hunters are utilizing the Parking Lots and Trail Segments, all weapons shall be unloaded and kept in cases. (e) The Parking Lots shall not be utilized to clean or dress animals killed by hunters. (f) AVR shall prepare and provide information regarding the hunter reservation system to the Pitkin County Open Space and Trails Board for dissemination to hunters and outfitters. Such information shall include the telephone number or email address to be utilized in making reservations. (v) Use of the entire Trail Easement shall be limited to daylight hours, except in case of emergencies. For the purpose of this restriction, daylight hours will be deemed to include one hour before sunrise and one hour after sunset. (vi) The Bike /Equestrian spur (Segment B) shall be closed from November 1 to May 1, each year. (vii) Use of the entire Trail Easement during the winter months shall be limited to hikers, cross country skiers and snowshoers. (viii) No portion of the Trail Easement shall be available for use by the public until construction has been completed pursuant to paragraph 7 of this Agreement, until the trail has been accepted by the BOCC pursuant to paragraph 8 of this Agreement and the BOCC has provided proof of insurance pursuant to paragraph 11 of this Agreement. (ix) Segment F shall be an easement for access along the existing Aspen Valley Ranch Road (or as that road may be relocated) and shall not be a separately constructed trail. It shall be utilized only if access over the West Ranch Trail dedicated by the Aspen School District is unavailable. -4- q RECEPTION #: 583885, 10/28/2011 at 11:31:43 AM, 5 OF 17, Janice K. Vos Caudill, Pitkin County, CO 4. Grant of Parking Easement. AVR hereby grants and conveys to the BOCC, for the exclusive use and benefit of the public (which shall include AVR Permittees), an irrevocable and perpetual parking easement (the "Parking Easement ") over the Parking Lots for the purpose of providing parking to members of the public. The Parking Easement shall be an easement appurtenant to and burdening the ownership of the AVR Property. The Parking Easement may be used and enjoyed by members of the public, subject to such reasonable regulations as the BOCC may enact. Use of the Parking Lots shall be limited to recreationalists and BOCC Permittees engaged in maintenance of the Parking Lots or trails. Overnight parking may be allowed at the discretion of the BOCC, but camping in the Parking Lots shall be prohibited. The BOCC shall have the right, but not the obligation, to erect within the Parking Easement signage concerning usage of the Parking Lots, Trail Easements and surrounding areas. 5. Reserved. 6. Grant of Maintenance Easement. AVR hereby grants and conveys to the BOCC, for the use and benefit of the BOCC Permittees, an irrevocable and perpetual maintenance easement (the "Maintenance Easement ") over the Parking Lots, Trail Easement and such portions of the AVR Property adjoining the Parking Lots or Trail Easement as may be reasonably necessary in connection with the BOCC's maintenance rights pursuant to paragraph 8(b) below. The Maintenance Easement shall be non- exclusive in all respects, and AVR reserves all rights to use and enjoy the Maintenance Easement for any purposes which do not materially and unreasonably interfere with the BOCC's ability to perform maintenance upon the trails subject to the Trail Easement or the Parking Lots. 7. AVR Construction Obligations. AVR agrees to construct, at its sole cost, The Parking Lots and all Trail Segments subject to the Trail Easement in accordance with the specifications set forth on Exhibit C attached hereto and incorporated herein. The Parking Lots and the Trail Segments shall be constructed in a good and workmanlike manner, and the Trail Segments shall be constructed by qualified trail construction personnel reasonably acceptable to the BOCC. AVR shall complete construction of the Parking Lots and Trail Segments on or before December 31, 2011 unless such deadline is extended by the BOCC. 8. Acceptance by BOCC; Maintenance of Parking Lots and Trails. (a) Upon completion of the Parking Lots and Trail Segments, AVR shall notify Pitkin County staff ( "County Staff') that the Parking Lots and Trail Segments are ready for acceptance and shall provide to the County Staff evidence that the Parking Lots and Trail Segments have been constructed and completed in accordance with Exhibit C. Upon satisfaction of this requirement, the County's Staff or designated consultants shall promptly inspect the Parking Lots and Trail Segments and shall, within five (5) days following the inspection, notify AVR in writing of non - acceptance or acceptance of the Parking Lots and Trail Segments. If the Parking Lots and Trail Segments are not accepted, the reasons for non- acceptance shall be stated and reasonable corrective measures shall be outlined. If any corrective measures are required, AVR shall notify County Staff upon completion of such corrective measures, and the same procedures shall apply to the County Staff's review and inspection of the corrective measures until such time as the Parking Lots and Trail Segments are ready for final acceptance. -5- RECEPTION #: 583885, 10/28/2011 at 11:31:43 AM, 6 17, Janice K. Vos Caudill, Pitkin County, CO (b) Following final acceptance of the Parking Lots and Trail Segments by the BOCC, AVR and its successors in interest shall have a continuing obligation to maintain all Trail Segments to the standards set forth in Exhibit C. Should AVR fail in its obligation to maintain the Trail Segments, the BOCC shall have the right, but not the obligation, to do so on AVR's behalf ten calendar days after the provision of notice to AVR. Should the BOCC elect to maintain the Trail Segments on AVR's behalf as provided in this subparagraph, it shall provide AVR with a bill for maintenance expenses within 30 days following the completion of the maintenance activities for which the BOCC seeks reimbursement. Should AVR fail to remit payment to the BOCC within 30 days of the date of the bill for maintenance expenses, the BOCC shall be authorized to assess the unpaid amount against the AVR property. The amount so assessed shall be a lien against the AVR property until paid and shall have priority over all other liens except general taxes and prior special assessments. The assessment may be certified to the Pitkin County Treasurer and collected and paid over in the same manner as provided for the collection of taxes. The BOCC shall maintain the Parking Lots. 9. Default. If a Responsible Party fails to discharge its obligations hereunder, the other Party may give written notice thereof to the Responsible Party. If the Responsible Party does not cure such failure within sixty (60) days after its receipt of such notice, then the nondefaulting Party shall have the right, but not the obligation, to cure such failure. If a Party elects to cure the other Party's failure under this paragraph, then the defaulting Party shall, within ten (10) days after written demand by the other Party (accompanied by invoices setting forth in reasonable detail the costs incurred by such Party), reimburse it for the reasonable costs and expenses incurred in connection therewith, together with interest thereon from the date of such demand until paid at the rate of 8% per annum. Nothing herein shall be construed to grant AVR the power to enforce the Pitkin County Code. 10. Mechanics' Liens. If, by virtue of any work undertaken by, through or under a Party pursuant to this Agreement, any mechanics' lien claim is recorded in the Records against any real property interest of the other Party (the "Liened Party "), then the Party responsible for the payment of the work giving rise to such lien claim shall cause such lien claim to be released and discharged of Record (by payment, bonding or other available process) within sixty (60) days after recordation of the claim, provided that in any case such release and discharge must be secured prior to any foreclosure of such lien or any conveyance or disposition of the encumbered property interest pursuant to such lien. If such release and discharge is not timely secured, then the Liened Party, at its election and without obligation to do so, may secure the release and discharge of the lien claim through its own efforts, whether by payment, bonding or otherwise, and the Liened Party shall be entitled to recover from the Responsible Party all costs and expenses, including reasonable attorneys' fees, that the Liened Party may incur in connection therewith within thirty (30) days after written demand therefor (accompanied by invoices setting forth in reasonable detail the costs incurred by such Party), together with interest thereon from the date of such demand until paid at the rate of 8% per annum. 11. Insurance. The Parties acknowledge and agree that this Agreement creates an easement for Recreational Purposes as defined in C.R.S. Section 33 -41 -101, et seq., and the easements created herein are subject to the limitations of liability set forth therein. BOCC further agrees to add AVR (and, upon notice to the BOCC of a change in ownership, its successors and assigns in the ownership of the underlying real property traversed by the Trail -6- � RECEPTION #: 583885, 10/28/2011 at 11:31:43 AM, 7 OF 17, Janice K. Vos Caudill, Pitkin County, CO Easement, or any part thereof) and Aspen Valley Downs Homeowners' Association, Inc. (on its own behalf and on behalf of its Members) ( "AVD ") as additional insureds on its comprehensive general liability insurance policy, which insurance shall be maintained by the BOCC to provide protection against liability from claims arising out of the use of the Trail Easement. Such insurance shall be carried in amounts not less than the liability limits specified in C.R.S. Section 24 -10- 114(1), as it may be amended from time to time, and shall provide AVR and AVD and its successors and assigns with thirty (30) days advance written notice prior to cancellation or termination. BOCC shall, upon written request therefore from AVR, AVD or any successor or assign, provide a Certificate of Insurance as verification of compliance with these requirements. 12. Rio Grande Trail Easement. AVR hereby grants an easement, in a mutually- agreeable alignment across the portion of the AVR Property lying to the south of River Road, between that road and the Rio Grande Trail, that will allow non - motorized access to the trail by hikers, bikers and horseback riders. The County will be responsible for the preparation of such documents and legal descriptions as may reasonably be required to establish and describe the easement and shall be responsible for the construction, maintenance and repair of a trail to be located within the easement. While the parties intend that the trail alignment selected shall be mutually - agreeable, AVR shall not unreasonably withhold its consent to an alignment proposed by the BOCC. 13. Remedies Cumulative. The Parties' rights hereunder shall be cumulative with and in addition to, and not exclusive of, any other remedies available to the parties at law or equity for any breach or default of their respective obligations hereunder. Notwithstanding the foregoing, no breach of this Agreement shall entitle either Party to cancel, rescind or otherwise terminate this Agreement. 14. Covenants Running With the Land. The BOCC and AVR hereby agree that the covenants and agreements set forth herein shall be binding upon and inure to the benefit of their respective successors and assigns, and shall run with the land. This Agreement shall be recorded in the Records, and shall serve as notice to and shall be binding upon and inure to the benefit of the Parties and upon the successive owners of the AVR Property. 15. Subordination. It is AVR's intent that all deeds of trust, mortgages and other financing instruments encumbering the AVR Property (collectively, "Mortgages ") shall be junior and subordinate to the Easements and other rights created by this Agreement. In furtherance of such intent, AVR shall cause the holders of any and all Mortgages encumbering the AVR Property to consent to this Agreement and to acknowledge that its Mortgage is subordinate to this Agreement. 16. Estoppel. Each Party, upon the request of the other Party, will certify to any person or entity designated by the requesting Party as to the existence or absence of any breaches of this Agreement. 17. Notices. Any notice or demand under this Agreement shall be in writing and shall be deemed given, received and served (a) upon personal delivery or upon verified transmission by telecopier or similar facsimile transmission device, (b) on the third business day after mailing, postage prepaid, by registered or certified mail, return receipt requested, or (c) on -7- RECEPTION #: 583885, 10/28/2011 at 11:31:43 AM, 8 OF 17, Janice K. Vos Caudill, Pitkin County, CO the first business day after receipted delivery to a nationally recognized courier service which guarantees next - business -day delivery, delivery charges prepaid, in each case addressed as follows: If to the BOCC: Pitkin County Attorney's Office 530 E. Main St., Suite 302 Aspen, CO 81611 Attn: Facsimile: (970) 920 -5198 If to AVR: Aspen Valley Ranch, LLC 3301 Windy Ridge Parkway Suite 340 Atlanta, GA 30339 Attn: Richard Holland Facsimile: (770) 643 -1885 With a copy to: David J. Myler The Myler Law Firm, P.C. 211 Midland Avenue, Suite 201 Basalt, CO 81621 18. Aspen Valley Downs Homeowners' Association. The parties acknowledge and agree that the provisions of Sections 3(b)(i), (ii), (iv), (v), (vi), (vii) and (viii) benefit and shall be enforceable by the Aspen Valley Downs Homeowners' Association, Inc. By its signature below, Aspen Valley Downs Homeowners' Association grants its consent, on its own behalf and on behalf of its Members, to the terms of and uses described in this Agreement. 19. Entire Agreement. Each Party acknowledges that this Agreement sets forth the entire agreement and understanding of the Parties with respect to this Agreement and that no oral or other agreements, understandings, representations, or warranties, other than those set forth in this Agreement, exist with respect to the subject matter hereof. 20. No Waiver. In no event shall any failure by either Party to enforce any covenant or restriction contained in this Agreement be deemed a waiver of the right to enforce such covenant or restriction thereafter. 21. Governing Law. The terms and provisions of this Agreement shall be construed and enforced in accordance with the laws of the State of Colorado. Venue for any and all disputes shall be in Pitkin County District Court. -8- �3 RECEPTION #: 583885, 10/28/2011 at 11:31:43 AM, 9 OF 17, Janice K. Vos Caudill, Pitkin County, CO 22. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed a duplicate original. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. THE BOCC: THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, a political subdivision of the State of Colorado / By: 4.- ` $Chair AVR: ASPEN VALLEY RANCH, LLC, a Delaware limited liability company By: RV — AVR, LLC, its Administrative Member By: Resort Ventures, LLC, its Manager By: 6 Richard F. ollan , anager AVD: ASPEN V • LEY DOWN HOM • WNERS' ASSOCI • ION, a Colora• o nonprofit co .era/on apv-- B Y •�� , Presdent -9- RECEPTION #: 583885, 10/28/2011 at 11:31:43 AM, 10 OF 17, Janice K. Vos Caudill, Pitkin County, CO STATE OF 0 G Y4 D ) ss. COUNTY OF I T /•( I it ) e foregoing instrume w a o edged before me this l da of pp�� - 4. Ie k e , by 4 �b, , t ( ttltcwdsas Chair of the Board of County Commissioners of itkif e Colorado, a political subdivision of the State of Colorado. Witness my h., OM,:•!..„,,/ seal. My commis .::.'ckpires: C' „,, - /5 - -i/ 7 . ! LINDA 'GUSTAFSON� , OA . ....iiiike--.---, .- • ■ ot. Public UPI' ! �y v C� Ex 01M512012 STATE OF L7Z -V ) _ _ )ss. COUNTY OF e. L f: ) 1 The foregoing instrument was acknowledged before me this c Q day of „Q y � , 2010, by Richard y. Manager of Resort Ventures, LLC. Witness my hand and officia : !�� My commission expires: It af • •' , otary Public !! • , ...__ 0... &XI , . • STATE OF C. °\-o+� Aid ) ) ss. COUNTY OF P \Z K111 ) The foregoing instrument was acknowledged before me this fir'” day of Home r.. A•A tir,( , 2010, byrW.rc FdrL -Ae, A as President of Aspen Valley Downs owners' Association, Inc., a Coforado nonprofit corporation. Witness my hand and official seal. My commission expires: Ws ate. air . � ` � S a n . ` 9 • �i 'fJ' K ''q`d''. NiryPublic • fir . .� z. Agreement f4rard and A' "$I Ia of ?'railiasement 071610.doc : IC �', -# � C 1111 .` ∎ ', ` -10- ,r / g RECEPTION #: 583885, 10/28/2011 at 11:31:43 AM, 11 OF 17, Janice K. Vos Caudill, Pitkin County, CO EXHIBIT A to EASEMENT AGREEMENT (Legal description of AVR Property) PARCEL A: HOMESTEADS 1 THRU 9, AH, AGRICULTURAL FACILITIES PARCEL AND PARCELS I THRU VII, RURAL AND REMOTE PARCELS, according to the Subdivision Exemption Plat ASPEN VALLEY RANCH, recorded October 14, 2005 in Plat Book 76 at Pages 1 thru 18, inclusive, as Reception No. 516274 and Corrected Sheet 1, recorded May 4, 2006 in Plat Book 79 at Page 31 as Reception No. 523731. PARCEL B: A tract of land situated in Lot 1, Section 4, and Lot 1, Section 5, Township 9 South, Range 85 West of the 6th P.M., more fully described as follows: Beginning at a point on the West line of Said Lot 1, Section 5 whence the Northwest corner of said Lot 1, Section 5 bears N 00 °06'08" W 628.22 feet; thence N 00 °06'08" W 628.22 feet to the Northwest corner of said Lot 1, Section 5; thence N 89 °59'59" E 992.08 feet along the North line of said Lot 1, Section 5 and Lot 1, Section 4; thence S 00 °00'00" W 823.12 feet to the center of Dry Woody Creek; thence S 45 °11'00" W 23.22 feet along the center of Dry Woody Creek; thence S 52 °12'00" W 195.35 feet along the center of Dry Woody Creek; thence S 79 °41'00" W 263.65 feet along the center of Dry Woody Creek; thence N 56 °00'00" W 676.38 feet to the point of beginning. BEING HISTORICALLY DESCRIBED AS FOLLOWS: A tract of land situated in Lot 1, Section 4, and Lot 1, Section 5, Township 9 South, Range 85 West of the 6 P.M., more fully described as follows: Beginning at a point on the West line of Said Lot 1, Section 5 whence the witness corner to the Southeast comer of said Section 5 bears S 04 °33' E 2572.12 feet; thence N 626.37 feet,to the Northwest corner of said Lot 1; thence East 989.82 feet along the North line of said Lot 1, Section 5 and Lot 1, Section 4; thence South 823.52 feet to the center of Dry Woody Creek; thence S 45 °11' W 23.22 feet along the center of Dry Woody Creek; thence 79°41"W 263.65 feet along the center of Dry Woody Creek'; thence N. 56° W 674.97 feet to the West line of said Lot 1, Section 5, the point of beginning. 898015.1 ITMACD O8A0/10 11 34 AM A -1 RECEPTION #: 583885, 10/28/2011 at 11:31:43 AM, 12 OF 17, Janice K. Vos Caudill, Pitkin County, CO EXHIBIT B to EASEMENT AGREEMENT (Map Depicting Location of Trail Easement, including all Trail Segments) • • • 898015.1 1TMACD 07!16/10 3:44 PM B-1 / � RECEPTION#: 583885, 10/28/2011 at 11:31:43 AM, 13 OF 17, Janice K. Vos Caudill, Pitkin County, CO I .• e% ail 1 , .7rfir. e „ eV.. ' ',- , '''. - - ..t. : ":;. "'; "c - i '" , , , A ■ , 1. , i , I . ..7 ,, :".t. * . A cc-, tr,, .... 4.. , ..."■•S• 1 .‘ 1,..-C•,, f,.-,7 . c , ,r ., , -.,i 'F • IA ,. si4 , „ c ' ,;t' '': 4 -17- s ''`i /- .44..X..'.; - ' '''' i ' ‘1.,;' 4: 4 '77 4 . 4 ' 1, ' v ,', i ) - ....1 -, , '. , ,,,9;, 4,,,.„-::/ igli 1... ;'.i.' , ii, '4.'` ' '*--,-,-:.‘ ., , f4)'',1., , ,;: - • ,, , *,-_.';',„' •. !- ' T , ilZ1,7!” f i 2.4 rt e, d 1 ; , •!- • , ; :` ,:41 ,, !It • .'_ i , . 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", * •'• ''• . -.. . r" ....., • #.Y . : ' ..i • ..‘ , , ' • ' - 40 :/t1 /•;"•---.•' .: •-• 'Tk - ..i ' • • : . : -. : ; :=N - .. c ) -.2. . k,c ..t.ers-..f 'Eg:c;', !‘ 7 - • •• •i,' , .., ' :, • • 4; -,. • • • 1 •:•••• ;,' • ' . .-, , f4t .$4 .'...,,;,,,.,:-..., ? :7, ' - - . ..4_, 1..Y.. , • N ■„41' t l':'.;$ 4 ,',...;:. ''- . ,..gt.:„ , '" .''..1. . • • ..'' . ...;-: . ' .'f...i , ,,1, - ' . • ,' ' . f ' : . lk• s • ..: t" -."...."...,•:"... : :c ';' ';::- ...."; W - *. h.., .' """.' "....' : . . • - , - . .... ■ / i7; RECEPTION #: 583885, 10/28/2011 at 11:31:43 AM, 14 OF 17, Janice K. Vos Caudill, Pitkin County, CO r- EXHIBIT C ti to EASEMENT AGREEMENT (Specifications for Trail Segments) Treadwidth 36" Maximum grade 12% for a maximum length of 50 feet. Trail outslope or inslope must be a minimum of 2% and maximum 4% No switchbacks, only climbing turns to allow bike travel. Remove all topsoil to the mineral soil layer. Only use rock waterbars, rolling or grade dips to provide drainage. Typical Trail Cross Section, Talus and Rubble Rock Section and Outsloped Climbing Turn details are attached. 898015.1 STMACD 08/30110 11:38 AM C-1 r / j 1 RECEPTION #: 583885, 10/28/2011 at 11:31:43 AM, 15 OF 17, Janice K. Vos Caudill, Pitkin County, CO i TYPICAL TRAIL CROSS SECTIONS ' t NOT TO SCALE I Trailbed Width 1 i Amount of bench varies with % of sideslope. Outslope trailbed 6 -10 %. Troilbed Location w (mm Slope rounding in - . commom moteriol e o o� i / Above 50% Sideslope I Full :tench Slope rounding in .. commom material �„. 200m 1 2 \ ■ ∎\ 30% to 50% \ Sideslope 3/4 Bench `- --i Fill slope v Slope rounding in 1 commom moteriol i aoom 8olohced Secion ° ° i 0) �' i 10% to 30% 'I Fill slope Sideslope ' 1 I I r ■ j Troilb-d i i ■ C i 0% to 10% Sideslope 4/96 912- 1 V RECEPTION #: 583885, 10/28/2011 at 11:31:43 AM, 16 OF 17, Janice K. Vos Caudill, Pitkin County, CO TALUS AND RUBBLE ROCK SECTION NOT TO SCALE O � Original Slope Line Cop Rocks ��e 0 ( \ Trailbe of suitable excavation or , 4�� _ ., borrow material. � � "� In 2�. - � �,� l \ 111% `� Geotextile ° e 111 �_ ��tV1 �• • a P . o 1„,----- tv ® r - 4 1 mph.,0. , N - ' Batter not `\� © _ ` st eeper than ‘, '' �,- A� ,. .t _ 2:1. s I `Rai v r w A )' �� Hond place and ) key in outer rocks. I I i I I I i I 1 S 1 1 4/96 912 -3 9 I RECEPTION #: 583885, 10/28/2011 at 11:31:43 AM, 17 OF 17, Janice K. Vos Caudill, Pitkin County, CO 1 ' • OUTSLOPED CLIMBING TURN I NOT 70 SCALE 1 1 _ -....— A // / ut slo U 1 5 meters I Inslope o p9rode outslope � r rnnsition t section I � I minimum � I • I '// Turn 1/ Maintain constant grade � Section //- through turn. points of curve I i . / 1 // . / /j/ I /, I ////// / Upgrade i / // j / /�/ // / / / / /IFi // '/?//////%/ l e/� j / / /i /.f /� /// / L -- A Centerline of climbing turn will be FLAGGED or STAKED ON THE GROUND. PLAN VIEW Through cuts ore \ \ \ permitted through j . „ \ \ \ //\ climbing turns \ 'A .6.. A/ Inslope _% ` \`' ' \ \ \ \ � \ \ \ \ \ \ / \ / \ / \ / \\ \//\\ i i \� \ \i / \ \ \i /�i /� \� \ \ / /� \ / \\ \\ ` / / / / outslo p e % i \ \ SECTION A -A I 4 /96 912 —10 67,, RECEPTION #: 583883, 10/28/2011 at 11:31:41 AM, 1 OF 1, R $11.00 DF $0.00 Janice K. Vos Caudill, Pitkin County, CO POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, THAT 1, Richard F. Holland, as Manager of Resort Ventures, LLC, whose address is 3301 Windy Ridge Parkway, Suite 340, Atlanta, Georgia 30339, reposing special trust and confidence in David J. Myler, whose address is 211 Midland Avenue, Suite 20I , BasaIt, Colorado 81621, hereinafter sometimes referred to as "Attorney -in- Fact," do hereby make, constitute and appoint said David J. Myler as my true and lawful Attorney -in -Fact in my name, place and stead, for the following purposes: To execute any and all documents required of Aspen Valley Ranch, LLC pursuant to a Settlement Agreement between Aspen Valley Ranch, LLC and the Board of County Commissioners of Pitkin County, Colorado, including the following: 1. Subdivision Exemption Plat 2. 1041 Maps 3. Escrow Agreement 4. Occupancy Deed Restriction and Agreement, together with License Agreement 5. Deed Restriction Agreement for the Preservation of Historic Resources 6. Deed Restriction for Accessory Structures with Bathing Facilities Further, I hereby warrant the said authority granted above and I ratify and confirm all that my Attorney -in -Fact shall do or cause to be done. This Power of Attorney shall not be affected by my disability. IN WITNESS WHEREOF, I have hereunto set ;rid and seal this J 3 -day of O` h ta—, 2010. Ade Richare . Holl. • j STATE OF ) u ) ss. f COUNTY OF � ) The foregoing document was acknowledged and sworn to me before me this /- day of , 2010, by Richard F. Holland, as Manager of Resort Ventures, LLC. . WITNESS my hand and official se r otary Public, Cobb County, GA My Commission Expires Sept. 23, 1 - 4 .. My commission expires: t p • Nora ., ' ublic ! r" G: \Clienf\spen Valley Ranch (formerly ResortVentares)'Power of Attorney . Richard F t{ottand.wpd P3 RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 1 OF 44, R $226.00 Janice K. Vos Caudill, Pitkin County, CO SETTLEMENT AGREEMENT This Settlement Agreement ( "Agreement ") is made this day of , 2011, between the ASPEN VALLEY RANCH LLC, a Delaware limited liability co pany ( "AVR "), and the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, a political subdivision of the state of Colorado ( "BOCC" or the "County "). RECITALS A. AVR owns certain real property located in Pitkin County, Colorado (the "County ") consisting of approximately 485 acres located in Sections 4, 5, 8 and 9, Township 9 South, Range 85 West, 6 Principal Meridian, Pitkin County, Colorado, which is more particularly described as Homesteads 1 -9 and the Agricultural Facilities Parcel, Aspen Valley Ranch Subdivision and Lots 6 -9, Aspen Valley Downs Subdivision, Pitkin County, Colorado (the "Property "). A description of the Property is attached hereto as Exhibit A and incorporated herein by reference. B. The BOCC is the governing body of the County, and has land use and zoning authority with respect to the Property. The BOCC has adopted the Pitkin County Land Use Code ( "LUC ") to regulate land use within the County. C. Disputes and differences have arisen between the County and AVR concerning the existence of public access across the AVR Property. In particular, the Parties disagree as to whether any public highway or right -of -way exists across the Property from Upper River Road on the south side of the Property extending to the property owned by the Bureau of Land Management (the "BLM Property ") on the north side of the Property; and whether a roadway depicted upon an 1888 United States Survey for Township No. 9 South, Range No. 85 West (the "1888 Survey ") is a public right of way still open to public use. D. Pursuant to C.R.S. § 43 -2 -303, the BOCC has the authority to vacate any roadway located entirely within the County and not within the limits of any city or town, including unplatted or undefined roadways which exist by right of usage. E. The roadway depicted upon the 1888 Survey is located wholly within the County and is not within the territorial limits of any city or town. F. AVR and the County desire to settle the Lawsuit and resolve their differences upon the terms and conditions set forth in this Agreement., which include: (i) conveyance by AVR to the County, and acceptance by the County, of parking, trail, and maintenance easements in the form of Exhibit C attached hereto and incorporated herein for public access across the Property for the purposes and with the limitations in scope described therein (the "Trail Easement "); (ii) approval by the County and recording of a subdivision exemption plat for the Property, which shall reference the trail described in the Trail Easement and cross - reference the terms and conditions of the Trail Easement, shall not depict the road shown on the 1888 Survey 897903.1 11MACD 02/10/11 237 PM 9 Li RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 2 OF 44, Janice K. Vos Caudill, Pitkin County, CO or contain the plat note described in Condition 3.A. of a 2008 County Resolution respecting the Property attached hereto as Exhibit B, but shall otherwise comply with the requirements of the 2008 Resolution (the "Exemption Plat "); (iii) formal vacation by the BOCC of the roadway, if any, depicted on the 1888 Survey, and any other highways, roads, trails, easements or public rights -of -way across the Property other than those depicted upon the Exemption Plat; (iv) dismissal of claims and counterclaims which were or could have been asserted in the Lawsuit, with each party to bear its own costs and attorneys' fees; and (v) acknowledgement by the County that the Pending Litigation Regulation does not apply to the Property. G. AVR and the County are legally authorized to enter into this Agreement. AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Definitions. For purposes of this Agreement, the following terms and references shall have the meanings indicated: (a) Agreement. This Settlement Agreement between AVR and the County. (b) County. The County of Pitkin, State of Colorado, and referring to either the government or the territorial limits of the County as the context may require. (c) Escrow Agent. Land Title Guarantee Company, Aspen, Colorado.. (d) Exemption Plat. A subdivision exemption plat in the form of Exhibit D. (e) Exhibits. The following Exhibits to this Agreement, all of which are incorporated by reference into and made a part of this Agreement: Exhibit A - Legal Description of the Property Exhibit B - 2008 Resolution Exhibit C - Trail Easement - AVR Exhibit D - Exemption Plat Exhibit E - Trail Easement — Aspen School District (f) Property. The real property described in Exhibit A attached to this Agreement. (g) Records. The real property records of Pitkin County, Colorado. (h) Regulations. Collectively, the LUC, together with such other rules, regulations, and procedures adopted by the BOCC that may contain additional requirements affecting the use and development of land in the County, as in effect from time to time, and which apply to the Property. 897903.1 1TMACD 01/19/11 1:59 PM 2 G { RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 3 OF 44, Janice K. Vos Caudill, Pitkin County, CO (i) Trail Easement. The agreement for grant and acceptance of parking, trail and maintenance easements in the form of Exhibit C. (j) Vacation Resolution. A Resolution of the BOCC vacating the road depicted upon the 1888 Survey and any other highways, roads, trails, easements or public rights -of -way across the Property other than the Trail Easement or other rights -of- way depicted upon the Exemption Plat. (k) 2008 Resolution. The BOCC Resolution adopted August 19, 2008, a copy of which is attached as Exhibit B. 2. Trail Easement. The Agreement for Grant and Acceptance of Trail Easement, attached hereto as Exhibit C (the "Trail Easement "), is hereby approved as to form by AVR and the BOCC. The parties agree to execute and deliver the Trail Easement to the Escrow Agent contemporaneously with the execution of this settlement agreement. The parties shall then make best efforts to satisfy the following contingencies, all of which must be satisfied before the Board approves the Vacation Resolution called for under Paragraph 5 of this Settlement Agreement: (a) The alignment for each segment of the Trail Easement shall be finalized and accepted by AVR and the BOCC, which acceptance shall not be unreasonably withheld by either party. The alignments shall be shown on a map with surveyed centerline legal descriptions and shall be attached to the Trail Easement as an exhibit prior to recording the Trail Easement in the Records. AVR shall pay for the survey. (b) The BOCC has received an amendment to the Non - Development Easement — Wildlife which affects the land area traversed by the Bike/Equestrian Spur which has been approved and executed by the Aspen Valley Downs Homeowners Association. (c) The BOCC has received an easement from the Aspen School District for a trail which traverses the so called West Ranch Parcel in the form attached hereto as Exhibit E. 3. Exemption Plat. (a) Within ten (10) days following execution of this Agreement, AVR shall prepare and submit to the County the Exemption Plat. The Exemption Plat shall conform to the conditions of the 2008 Resolution except that it need not contain the language required by Condition 3.A and shall depict the alignment of the Trail Easement. (b) Within 45 days following receipt of the Exemption Plat, the County shall have reviewed and approved the Exemption Plat and, upon obtaining all required signatures, shall have delivered the Exemption Plat to Escrow Agent. 4. Pending Litigation. Within three (3) business days after execution of this Agreement, the parties shall jointly request that the Court continue to stay the Lawsuit pending satisfaction of the conditions of this Agreement, and the County agrees that during such time as 897903.1 17MACD 01 /19 /11 1 59P 3 RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 4 OF 44, Janice K. Vos Caudill, Pitkin County, CO the Lawsuit is so stayed, it shall not apply the Pending Litigation Regulation to any Required Documents or work authorized by the 2008 Resolution that do not involve development within the area in which development would have been prohibited under Condition 3.A. 5. Vacation of Rights of Way. (a) Within two (2) weeks after both the Trail Easement and Exemption Plat have been deposited with Escrow Agent, the County shall institute Vacation Resolution proceedings pursuant to C.R.S. § 43 -2 -303 and applicable LUC regulations, if any, to vacate the roadway, if any, depicted on the 1888 Survey, and any other highways, roads, trails, easements or public rights -of -way across the Property other than those depicted upon the Exemption Plat. (b) The parties acknowledge that C.R.S. § 43 -2 -303 provides that no roadway shall be vacated so as to leave any land adjoining said roadway without an established public road or private- access easement connecting said lands with another established road and requires that a county may adopt a resolution vacating any highway only at a public meeting and only after notice of the meeting and of the proposed resolution to vacate such roadway has been mailed to interested parties as described in the statute. The County agrees that its staff shall provide AVR with a copy of its proposed mailing list prior to sending the notice and shall add to the mailing list any persons that AVR may request. (c) AVR acknowledges that the BOCC cannot decide to vacate any road other than at a public meeting held in accordance with the provisions of C.R.S. § 43 -2- 303. AVR further acknowledges that nothing in this Agreement requires the BOCC to approve the Vacation Resolution; if it does not, this Agreement shall terminate. (d) On the 35 day following approval of the Vacation Resolution, provided that there has been no legal challenge or petition for referendum filed with respect to the Vacation Resolution, the parties shall notify the Escrow Agent that the conditions precedent have been satisfied, direct the Escrow Agent to record the Trail Easement and Exemption Plat, and dismiss the Lawsuit as provided in Section 6 below. (e) Upon recording of the Trail Easement and Exemption Plat, the County agrees that it shall not thereafter assert any claim with respect to the existence of any highways, roads, trails, easements or public rights -of -way across the Property except those granted in the Trail Easement and Exemption Plat and shall not cooperate with any other party asserting such a claim. 6. Dismissal of Pending Litigation, Recording of Trail Easement, Exemption Plat and Vacation Resolution. Upon receiving notification from the parties pursuant to Paragraph 5(d), the Escrow Agent shall record the executed Trail Easement, Exemption Plat and Vacation Resolution in the Records and, following recording, shall deliver the originals to the County. Upon recording of the Trail Easement, Exemption Plat and Vacation Resolution, the parties shall file a Stipulation of Dismissal, dismissing the Lawsuit and all claims and 897903.1 JTMACD 01/19/11 1 59 PM 4 911 RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 5 OF 44, Janice K. Vos Caudill, Pitkin County, CO counterclaims which were or could have been filed in the Lawsuit, with prejudice, each party to bear its own costs and attorneys' fees. 7. Fees. (a) AVR shall pay the standard fees, if any, set forth in the LUC for processing of the Exemption Plat and other Required Documents. (b) The County shall bear all costs in connection with the vacation proceedings described in Section 5 above. 8. Default; Remedies; Termination. (a) It shall be a default under this Agreement if either party fails to timely perform any material obligation required to be performed by it and such failure continues for a period of five days following its receipt of written notice specifying the default. If a default occurs prior to satisfaction of the conditions precedent, the non- defaulting party's sole remedy shall be to terminate this Agreement. If a default occurs after satisfaction of the conditions precedent, the non - defaulting party shall be entitled to specific performance. 9. Miscellaneous. (a) Amendment. Except as otherwise set forth in this Agreement, this Agreement may be amended, terminated or superseded only by mutual consent in writing of the County and AVR. (b) Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Colorado. (c) Expenses. Except as otherwise provided in this Agreement, AVR and the County shall each bear their respective costs and expenses associated with entering into, implementing and enforcing the terms of this Agreement. (d) Waiver. No waiver of one or more of the teens of this Agreement shall constitute a waiver of other terms. No waiver of any provision of this Agreement in any instance shall constitute a waiver of such provision in other instances. (e) Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect so long as enforcement of the remaining provisions would not be inequitable to the party against whom they are being enforced under the facts and circumstances then pertaining. (f) Authorization. The signatories to this Agreement affirm and warrant that they are fully authorized to enter into and execute this Agreement and all necessary 897903.1 JTMACD 01/19/11 1 59 PM 5 RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 6 OF 44, Janice K. Vos Caudill, Pitkin County, CO actions, notices, meetings and/or hearings required pursuant to any law to authorize their execution of this Agreement have been made. (g) Complete Agreement. This Agreement contains all of the understandings, conditions, and agreement between the parties relating to the matters addressed herein, and no other prior or current representation, oral or written, shall be effective or binding upon the parties. (h) Notices. Any notice or communication required under this Agreement between the County and AVR must be in writing, and may be given either personally or by registered or certified mail, return receipt requested. If given by registered or certified mail, the same shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addressees designed below as the party to whom notices are to be sent, or (ii) five days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the U.S. Mail. If personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. Any party hereto may at any time, by giving written notice to the other party hereto as provided in this Section designate additional persons to whom notices or communications shall be given. Such notices or communications shall be given to the parties at their addresses set forth below: If to AVR: Aspen Valley Ranch, LLC 3301 Windy Ridge Parkway Suite 340 Atlanta, GA 30339 Attn: Richard Holland Fax No.: (770) 643 -1885 With a copy to: David J. Myler The Myler Law Firm, P.C. 211 Midland Avenue, Suite 201 Basalt, CO 81621 If to County: Pitkin County Attorney 530 E. Main St., Suite 302 Aspen, CO 81611 Fax No. (970) 920 -5198 With a copy to: Pitkin County County Open Space and Trails 897903 JTMACD 01/19/11 1:59 PM 6 Pq RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 7 OF 44, Janice K. Vos Caudill, Pitkin County, CO 530 E. Main St., Third Floor Aspen, CO 81611 (i) Assignment. This Agreement shall be binding upon and, except as otherwise provided in this Agreement, shall inure to the benefit of the successors in interest or the legal representatives of the parties hereto. AVR shall have the right to assign or transfer all or any portion of its interests, rights or obligations under this Agreement to third parties acquiring an interest or estate in the Property, provided that to the extent AVR assigns any of its obligations under this Agreement, the assignee of such obligations shall expressly assume such obligations and any such assignment shall not impair the interests of the BOCC in this Agreement. The express assumption of any of AVR's obligations under this Agreement by its assignee or transferee shall thereby relieve AVR of any further obligations under this Agreement with respect to the matter so assumed. (j) Offer of Settlement. Consistent with C.R.E. 408, prior to the Effective Date, in entering into this Agreement, each party expressly reserves and does not waive any and all claims or objections otherwise available to such party with respect to the Lawsuit, and no provision of this Agreement shall be construed as an admission for or against either party or be offered into evidence by either party against the other party in either of the Lawsuits. (k) Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one and the same Agreement. (1) Covenants. The provisions of this Agreement shall constitute covenants or servitudes which shall touch, attach to and run with the land comprising the Property, and the burdens and benefits of this Agreement shall bind and inure to the benefit of all the estates and interests in the Property and all successors in interest to the parties to this Agreement. (m) Cooperation in Defending Legal Challenges. If any legal or equitable action or other proceeding is commenced by a third party challenging the validity of this Agreement, the Vacation Resolution, the Trail Easement or the Exemption Plat, AVR and the BOCC agree to cooperate in defending such action or proceeding and to bear their own expenses in connection therewith. Unless the BOCC and AVR otherwise agree, each party shall select and pay its own legal counsel to represent it in connection with such action or proceeding. 897903 1 JTMACD 01/19■11 1159 PM 7 3 o RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 8 OF 44, Janice K. Vos Caudill, Pitkin County, CO IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. ASPEN VALLEY RANCH LLC, a Delaware limited liability company By: RV —AVR, LLC, Its Administrative Member By: RESORT VENTURES, LLC, Its Manager By: Richard F. Holland, Manager BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO By: - C �= ;111111111111111‘. ' Yt .. ,- , Chair Or 11 G. \Client \Aspen Valley Ranch \Litigation\Settlement AgTeement 071910.doc 897903 1 JTMACD 07/19/10 10 00 AM 8 RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 9 OF 44, Janice K. Vos Caudill, Pitkin County, CO EXHIBIT A to SETTLEMENT AGREEMENT (Legal Description of AVR Property) PARCEL A: HOMESTEADS 1 THRU 9, AH, AGRICULTURAL FACILITIES PARCEL AND PARCELS 1 THRU VII, RURAL AND REMOTE PARCELS, according to the Subdivision Exemption Plat ASPEN VALLEY RANCH, recorded October 14, 2005 in Plat Book 76 at Pages 4 thru •18, inclusive, as Reception No. 516274 and Corrected Sheet 1, recorded May 4, 2006 in Plat Book 79 at Page 31 as Reception No. 523731. PARCEL B: A tract of land situated in Lot 1, Section 4, and Lot 1, Section 5, Township 9 South, Range 85 West of the 6 P.M., more fully described as follows: Beginning at a point on the West line of Said Lot 1, Section 5 whence the Northwest corner of said Lot 1, Section 5 bears N 00 °06'08" W 628.22 feet; thence N 00 °06'08" W 628.22 feet to the Northwest corner of said Lot 1, Section 5; thence N 89 °59'59" E 992.08 feet along the North line of said Lot 1, Section 5 and Lot 1, Section 4; thence S 00 °00'00" W 823.12 feet to the center of Dry Woody Creek; thence S 45 °11'00" W 23.22 feet along the center of Dry Woody Creek; thence S 52 °12'00" W 195.35 feet along the center of Dry Woody Creek; thence S 79 °41'00" W 263.65 feet along the center of Dry Woody Creek; thence N 56 °00'00" W 676.38 feet to the point of beginning. BEING HISTORICALLY DESCRIBED AS FOLLOWS: A tract of land situated in Lot 1, Section 4, and Lot 1, Section 5, Township 9 South, Range 85 West of the 6 P.M., more fully described as follows: Beginning at a point on the West line of Said Lot 1, Section 5 whence the witness corner to the Southeast comer of said Section 5 bears S 04 °33' E 2572.12 feet; thence N 626.37 feet to the Northwest corner of said Lot I; thence East 989.82 feet along the North line of said Lot 1, Section 5 and Lot 1, Section 4; thence South 823.52 feet to the center of Dry Woody Creek; thence S 45 °11' W 23.22 feet along the center of Dry Woody Creek; thence 79 °41' W 263.65 feet along the center of Dry Woody Creek'; thence N. 56° W 674.97 feet to the West line of said Lot 1, Section 5, the point of beginning. 197903.1 1TMACD OV30110 1 .11 PM 9 - 3 9- RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 10 OF 44, Janice K. Vos Caudill, Pitkin County, CO EXHIBIT B to SETTLEMENT AGREEMENT (BOCC Resolution) 897907.1 1TMACD 08/10 /101 22 PM 1 33 �� RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 11 OF 44, Janice K. Vos Caudill, Pitkin County, CO �1'F --- . +f it '' '':,.7,-.7--:;'-';'-'"."' '- ' '�I v 7- � l i1 n f i ti; x 1 t - h - ;,t4'1 - ._ ../.,.•,,.....;'.-/.. , re ft's-' :4. u "...;11e: a P1 ••. s j F ti �. r 1 - [ u . 7 '� , f3 y F .1 > r t 4 - - . 1 i� - ' , „ eo `s: L Y et '~ s ki M ;pry }-r •_ B `�C • Sz •' . , ( EJ Tts 1 r • r-i _ F i ,, ",'�. w y _ r _ r . C -: "°+ $y a o - L � . _ L C r • ti - - — _ 4Yf1 � .. i; }r ; • } • � - � i ;t ti if '41'1'1 , Sk ''''-:••! -.. -". ...-'. 7 .. ---. - ., ::. .',- :., ..-4: • 1: . . - . - .47.1!.. , - ,,,, : -, ..., ,, ,••• K . r e 1d LI RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 12 OF 44, Janice K. Vos Caudill, Pitkin County, CO RECEPTION#: 552118, 08/19/2008 at 04 :02:41 PM, 1 OF 5, R 80.00 Ooc Code RESOLUTION Janice K. Vos Caudill, Pitkin County, CO RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO GRANTING PARTIAL APPROVAL OF THE ASPEN VALLEY RANCH AMENDMENT TO DEVELOPMENT PERMIT, SPECIAL REVIEW, GMQS EXEMPTION AND DESIGNATION TO THE PITICIN COUNTY HISTORIC REGISTER Resolution No.Q_ -2008 RECITALS 1. Aspen Valley Ranch LLC ( "Applicant ") has applied to the Board of County Commissioners of Pitkin County, Colorado ("BOCC") to amend the prior approvals to include the following: A. Designate the Bourg Homestead and Barn to the Historic Register, and obtain incentives for the designation; B. Deed restrict three dwelling units on the Agricultural Facilities Parcel — two new units and the Bourg Homestead; C. Restore and enhance Dry Woody Creek as it traverses the property, and construct ponds and wetlands; D. Realign the entry road and construct a new road to the upper bench to serve Homesteads 6 and 7, as well as Aspen Valley Downs Lots 6-9; E. Install a central water system; F. Construct two accessory structures with bathing facilities on Homestead 8; G. Amend building and development envelopes. 2. These amendments require the following approvals: A. Amendment to Development Permit B. Designation to the Historic Register C. Special Review D. GMQS Exemption 3. The property is located on Upper River Road, and is described as Homesteads 1 -9 and the Agricultural Facilities Parcel, Aspen Valley Ranch Subdivision Exemption and Lots 6 -9, Aspen Valley Downs Subdivision. 4. The property is zoned RS- 20/PUD with the exception of approximately 2 acres of land within the Agricultural Facilities Parcel that is zoned AH. The Aspen Valley Ranch property contains a total of 485 acres that is divided into 10 parcels, each in excess of 35 acres. The Aspen Valley Downs lots contain 16.667, 17.22, 11.585 and 12.679 acres, respectively. 5. The BOCC approved Resolution No. 112 -2005, which granted Special Review, 1041 Hazard Review, Conceptual Submission and GMQS Exemption for Homesteads 1 -9 and the Agricultural Facilities Parcel. The BOCC granted 20 year vested rights with the approval. The irrigated hay fields are encumbered by two agricultural easements that benefit Aspen Valley Ranch and Aspen Valley Downs. Approximately 79 of the 85 acre AFP is encumbered with a wildlife easement that benefits Aspen Valley Downs. The Board of County Commissioners approved the Aspen Valley Downs Subdivision/PUD in 1992; the final plat is recorded in Plat Book 28 at Page 90. 6. The BOCC considered this application at duly noticed public hearings on April 23, May 14, June 4 and June 23, 2008, at which time evidence and testimony were presented with respect to the application. 3� RECEPTION #: 583884, 10/28/2011 at 11:31 :42 AM, 13 OF 44, Janice K. Vos Caudill, Pitkin County, CO Resolution No.6( -2008 Page 2 7. The BOCC finds that the following amendments comply with the applicable provisions of the Land Use Code: A. Designation of the Bourg Homestead cabin, barn and potato cellar to the Historic Register, and as an incentive for the designation, granting of a GMQS exemption for 5,000 square feet of floor area on the Agricultural Facilities Parcel: 3,500 square feet for the Ranch House and 1,500 square feet for two accessory structures with bathing facilities. B. Deed restriction of three dwelling units on the Agricultural Facilities Parcel. C. Realignment of the entry road and construction of a new road to the upper mesa (Homesteads 6 & 7 and Aspen Valley Ranch Lots 6-9) and construction of a new "Cone Road" on the Agricultural Facilities Parcel. D. Debris flow mitigation on the Agricultural Facilities Parcel E. Stream Enhancements on the upper and middle reaches of Red Canyon and Dry Woody Creeks. F. Ditch improvements in the lower pasture below the point where the blue line/intermittent lines on the USGS maps for Red Canyon and Dry Woody Creeks end. G. Amendments to the following envelopes: 1) Development envelope on Homestead 4 for the outdoor riding ring. 2) Development envelopes on Homestead 5 for the irrigation and fire protection pond and on -site wastewater treatment system. 3) Activity Envelopes on Homesteads 2, 3 and 4 for grading and pasture. 4) Expansion of building and development envelopes on and relocation of the access to Homestead 9. H. Construction of two accessory structures with bathing facilities on the Agricultural Facilities Parcel. NOW, THEREFORE, BE IT RESOLVED by the BOCC that it hereby designates the Bourg Homestead cabin, barn and potato cellar to the Pitkin County Historic Register. BE IT FURTHER RESOLVED by the BOCC that it does hereby approve the proposed amendments, subject to the following conditions, which shall run with the land and be binding on all successors in interest: 1. The Applicant shall adhere to all material representations made in the application or in public meetings or hearings and shall consider those representations to be conditions of approval, unless amended by other conditions. 2. The Applicant shall comply with all conditions of BOCC Resolution No. 112 -2005, except as amended herein. 3. Prior to submission of any earthmoving, access, ISDS or building permit applications, the Applicant shall: A. Be required to submit for approval by the County Attorney an amended Subdivision Exemption Plat that depicts the roads shown on the United States Survey for Township No. 9 South, Range No. 85 West of the Sixth Principal Meridian, as surveyed, examined and approved in November, 1888, as those roads cross the subject property. The plat shall be accompanied with an appropriate plat note of explanation approved by the County Attorney. Until the BOCC determines that there is insufficient evidence to pursue a public access claim across the subject Property, or until it is judicially determined that there is no such public access, or until the road as shown on the 1888 Map is either vacated, relocated or determined to be in an alternative location, J RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 14 OF 44, Janice K. Vos Caudill, Pitkin County, CO Resolution No.(1 -2008 Page 3 no development, except intersecting roads, shall be permitted within the area 30 feet on either side of the center line of such road. B. Be required to submit for approval by the County Attorney and Community Development amended Site Plans. The above referenced approvals shall be a condition precedent to finalization and recordation. The owner must sign the mylar copies of the site plans prior to submittal for recording. The Applicant shall amend the site plans as follows, prior to submission for recordation: 1) Homestead 1: Exclude the County road right -of -way from the development envelope. 2) Homestead 4: Include the flood mitigation bean envelope as shown on the original site plan. Eliminate the portion of the waste water disposal envelope that is located within the floodplain. 3) Homestead 8: Include the flood mitigation berm envelope as shown on the original site plan. 4) Agricultural Facilities Parcel: Include the flood mitigation berm envelope as shown on the original site plan. 4. Prior to issuance of a Certificate of Occupancy for the Bourg Homestead or issuance of building permits for the two new employee housing units, the Applicant shall be required to submit for approval by the County Attorney and the Housing Office a Deed Restriction for the three employee housing units on the Agricultural Facilities Parcel. The deed restriction shall be amended as follows: 1) Eliminate the provision that allows the Applicant to demolish the units without replacement. 2) In Paragraph #6, Condominiumization, specify that a new deed restriction shall be submitted for approval by the County Attorney and the Housing Office prior to recordation of the condominium plat. Prior to recordation of the new deed restriction, the Housing Office shall inspect the units to ensure that they comply with the criteria in the Housing Guidelines regarding the condition of the units. The condominiumization event and the deed restriction shall insure the affordability of the properties/lots/units, including appropriate restriction of potential future assessments, dues, or other such fees. 5. Concurrent with recordation of the amended subdivision exemption plat and site plans, the Applicant shall: A. Record a covenant in a form acceptable to the County Attorney in which the Applicant agrees to maintain the Bourg Homestead, barn and potato cellar in accordance with the Secretary of the Interior's Standards for Rehabilitation or the County's design guidelines for historically designated properties, once adopted by the BOCC. B. Record the Deed Restriction for the employee housing units. 6. Within 30 days of the date of this approval, the Applicant shall submit an access permit application for the Core Road to the Planning Engineer for review and approval. If a portion of the existing road on the west side of the Ranch Core is to be reclaimed, the Applicant shall submit an earthmoving permit showing all re- grading and revegetation, and the remaining trail access. 7. Prior to issuance of any Certificates of Occupancy for new structures on the Agricultural Facilities Parcel, the Applicant shall submit a detailed debris flow mitigation plan prepared by a qualified professional engineer or geologist licensed in the State of Colorado to staff and the Colorado Geological Survey for review and approval. The plan shall incorporate any recommendations made by the Colorado Geological Survey. The approved mitigation plan shall be implemented prior to issuance of any Certificates of Occupancy for new structures on the AFP. 8. With the building permit application for the residence on Homestead 9, the Applicant shall provide a site specific report from a qualified professional engineer or geologist licensed in the State of Colorado 37 RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 15 OF 44, Janice K. Vos Caudill, Pitkin County, CO • Resolution No.d61 -2008 Page 4 addressing mitigation for potential debris flow. Required mitigation shall be implemented prior to issuance of a Certificate of Occupancy for the residence. 9. With the access permit application for the driveway to Homestead 9, the Applicant shall provide engineered details for the bridge across Dry Woody Creek. If necessary, the Applicant shall also submit a floodplain development permit application. 10. The Applicant shall submit access permit applications for the relocation of the entry road and the new road to the upper bench (Homesteads 6 and 7 and Aspen Valley Downs Lots 6-9); the new roads shall comply with the Asset Management Plan and shall meet all fire department requirements regarding roadway width, adequate pullouts and turnarounds, and adequate access to dry hydrants. With the permit application for the entry road, the Applicant shall submit an earthmoving permit application to address the portion of the existing entry road to be reclaimed; the permit application shall show all re- grading and revegetation, and the remaining trail access. The trail shall be reviewed and approved by Open Space and Trails. 11. The Applicant shall submit an earthmoving permit application for improvements to the ditch on the lower pasture. With the permit application the Applicant shall demonstrate that this work will occur below the point where the blue line/intermittent streams shown on the USGS maps end (Red Canyon and Dry Woody Creek) to the satisfaction of the Environmental Health and Natural Resources Department. 12. Prior to submission of a floodplain development permit for bank stabilization and riparian restoration work adjacent to and above the Core area on the Agricultural Facilities Parcel (within the blue line/intermittent stream areas), the Applicant shall submit a riparian enhancement plan to the Environmental Health and Natural Resources and Community Development Departments for review and approval. No in- channel work is permitted, unless the Code is amended in the future. 13. Prior to issuance of building permits for the accessory structures with bathing facilities on the Agricultural Facilities Parcel, the Applicant shall record a covenant in a form acceptable to the County Attorney to ensure that the units are accessory to the common facilities on the AFP and will not contain kitchens. 14. The Ranch House on the Agricultural Facilities Parcel is exempt from growth management up to a maximum of 3,500 square feet of floor area. The Ranch House shall be used only for events hosted by the Association or individual homeowners at Aspen Valley Ranch, and shall not be used for commercial or other public events, including benefits. The Ranch House may contain a kitchen and bathrooms, but no bedrooms. 15. The total floor area on Aspen Valley Ranch shall not exceed 88,750 square feet. The maximum residential floor area per parcel shall be allocated as follows: A. Homestead 1: 13,250 sf B. Homestead 2: 5,750 sf C. Homestead 3: 5,750 sf D. Homestead 4: 5,750 sf E. Homestead 5: 5,750 sf F. Homestead 6: 10,750 sf G. Homestead 7: 10,750 sf H. Homestead 8: 12,750 sf I. Homestead 9: 13,250 sf J. Ranch House: 3,500 sf RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 16 OF 44, Janice K. Vos Caudill, Pitkin County, CO Resolution No.a_ -2008 Page 5 16. The floor area on each of Lots 6-9 of Aspen Valley Downs shall be limited to a maximum of 13,250 square feet. Each lot is exempt from growth management for up to 5,750 square feet of floor area, with additional floor area up to 13,250 square feet available through growth management competition or the use of TDRs. 17. The Applicant shall comply with the following measures to mitigate impacts to wildlife (in addition to those included in Resolution No. 112- 2005): A. Construction workers shall be prohibited from bringing dogs on -site during construction. B. Contractors are required by the County Code to provide a bear proof container for all edible and food related trash. C. The hay storage structure on the Agricultural Facilities Parcel shall be game proof— side walls shall be constructed of 8' high solid siding or mesh fencing with gates of at least 7' in height. 18. Failure to comply with these conditions of approval may result in revocation of this permit or any subsequent permits related to this property or vested rights associated with this property. NOTICE OF PUBLIC HEARING PUBLISHED IN THE ASPEN TIMES WEEKLY on the 9 day of December, 2007. APPROVED AND ADOPTED on the 23r day of June, 2008. BOARD OF COUNTY COMMISSIONERS, PITKIN COUNTY, COLORADO By . (1/�,. Hatfield, Chairman A 9 0 fr -�/ ' Jean r Jones, Clerk to � ` BOCC APPROVED AS TO C• NTENT: APPROVED .. • •RM: Cind iouben John Ely Community Development Director County A P166-07 PID # 264305302001; 264305302002 ;264305402001;26430540202; 264308104001; 26430430200164304302002; 264304302003; 264304201001; 264305300801 RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 17 OF 44, Janice K. Vos Caudill, Pitkin County, CO EXHIBIT C to SETTLEMENT AGREEMENT (Trail Easement - AVR) 897903.1 1TMACD 08. 128 PM 1 1 4/6 RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 18 OF 44, Janice K. Vos Caudill, Pitkin County, CO AGREEMENT FOR GRANT AND ACCEPTANCE OF TRAIL EASEMENT THIS AGREEMENT FOR GRANT AND ACCEPTANCE OF TRAIL EASEMENT (this "Agreement ") is dated as of the ?/1 -day of , 2011, by and between ASPEN VALLEY RANCH LLC, a Delaware limited liabilit company ( "AVR ") and the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, a political subdivision of the State of Colorado (the "BOCC"). Recitals A. AVR is the owner in fee simple of that certain real property which is legally described in Exhibit A attached hereto (the "AVR Property "). B. The BOCC is the governing body of Pitkin County, Colorado, a political subdivision of the State of Colorado (the "County "), and has certain authority both with respect to land use within the County and with respect to public rights -of -way. C. AVR and the BOCC have agreed in that certain Settlement Agreement dated t 'j , 2011 that AVR shall dedicate, grant and convey unto the BOCC certain n exclusive easements for the benefit of the public, and the BOCC shall accept such dedication, grant and conveyance subject to and upon the terms and conditions set forth in this Agreement. Agreement NOW THEREFORE, in consideration of the mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the BOCC and AVR hereby agree as follows: 1. Recitals. The Recitals set forth above are incorporated into and made a part of this Agreement. 2. Definitions. In this Agreement, the following terms have the meanings set forth below: (a) "AVR Permittees" means AVR and any current or future owner of any portion of the AVR Property, and their respective successors, assigns, grantees and mortgagees, together with such parties' respective agents, guests, employees, licensees, invitees, contractors, tenants and subtenants, and all persons who now or hereafter own or hold any possessory interest in any portion of the AVR Property, and together with the respective agents, guests, employees, licensees, invitees and contractors of any of the foregoing. RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 19 OF 44, Janice K. Vos Caudill, Pitkin County, CO • (b) "BLM Property" means the property owned by the Bureau of Land Management adjacent to the AVR Property on the north. (c) "BOCC Permittees" means the BOCC, together with its respective agents, employees, licensees, and contractors, and together with the respective agents, employees, licensees, invitees and contractors of any of the foregoing. (d) "Easement" means either the Maintenance Easement, Parking Easement or the Trail Easement, as indicated by the context in which such term is used. "Easements" means the Maintenance Easement, Parking Easement and Trail Easement, collectively. (e) "Emergency" means an event posing a bona -fide threat to life, health or safety. (f) "Maintenance Easement" has the meaning set forth in paragraph 6 of this Agreement. (g) "Parking Easement" has the meaning set forth in paragraph 4 of this Agreement. (h) "Parking Lots" means the parking lots to be constructed and dedicated pursuant to the Parking Easement, the locations of which are depicted upon Exhibit B attached hereto and incorporated herein. (i) "Party" means AVR and the BOCC, and their respective successors and assigns. (j) "Records" means the records of the Clerk and Recorder of Pitkin County, Colorado. (k) "Responsible Party" means the party responsible for the payment or performance of any obligations hereunder, as indicated by the context in which such term is used. (1) "Trail Easement" has the meaning set forth in paragraph 3 of this Agreement. 3. Grant of Trail Easement. (a) AVR hereby grants and conveys to the BOCC, for the use and benefit of the public (which shall include AVR Permittees), an irrevocable and perpetual trail easement (the "Trail Easement ") over that portion of the AVR Property depicted on Exhibit B. The Trail Easement shall, among other things, provide access to public lands located in Red Canyon and, in the case of the West Trail, Triangle Peak. The Trail Easement shall be an easement appurtenant to and burdening the ownership of the AVR Property. The Trail Easement includes the following segments: -2- RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 20 OF 44, Janice K. Vos Caudill, Pitkin County, CO (i) Segment A (multiple use) — parking lot to west end of Bike /Equestrian Spur (ii) Segment B (multiple use) — Bike /Equestrian Spur (iii) Segment C (limited use) — Headquarters Spur (iv) Segment D (multiple use) — East end of Headquarters Spur to Red Canyon Trail (v) Segment E (multiple use) - West Trail (vi) Segment F (multiple use) — Alternate access along Aspen Valley Ranch Road for use only if access over the West Ranch Trail dedicated by the Aspen School District is unavailable. (b) All Trail Easement segments shall be fifteen feet in width. Trails constructed within the Trail Easement shall be physically separated from any adjacent roadways and, except where terrain features or topography require a narrower or wider trail, the trails themselves shall be approximately four feet in width. The BOCC shall have the right, but not the obligation, to erect within the Trail Easement signage concerning usage of the Parking Lots, Trail Easements and surrounding areas. The Trail Easement may be used and enjoyed by all members of the public for hiking, biking and horseback riding, subject to such reasonable regulations as the BOCC may enact and to the following additional restrictions: (i) No motorized vehicles shall be allowed on any trail segment, except in case of emergencies. (ii) Dogs are allowed on all trail segments if kept on a leash and under control. (iii) No horses or bicycles shall be allowed on the Headquarters Spur, except in case of emergencies. (iv) Hunters, including commercial outfitters, shall be entitled to utilize the Parking Lots described in Section 4, below, and Trail Segments A, B, D and E, during the annual hunting seasons designated by the Colorado Division of Wildlife each year that do not conflict with the winter trail closure from November 1 to May 1. Hunters shall not be entitled to utilize trail segment C at any time. Use of the Parking Lots and Trail Segments by hunters are subject to the following requirements and restrictions: (a) All hunters, including commercial outfitters, must obtain a reservation in order to utilize the Parking Lots and Trail Segments at least seven (7) days prior to the date on which the hunting party departs from the Parking Lots. No reservation shall be required to return to the Parking -3- )J3 RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 21 OF 44, Janice K. Vos Caudill, Pitkin County, CO • Lots. A reservation shall be made with the Myler Law Firm, Basalt, Colorado (or such other person or entity as the County may designate) by telephone or email. The hunting party shall be required to provide copies of hunting licenses for any individual carrying a weapon. (b) The number of hunter reservations shall be limited to one hundred (100) individuals, including guides, per calendar year and shall be confirmed on a first come, first served basis. Reservations will not be accepted before June 1 of the year in which a hunting party will utilize the Parking Lots and trail. (c) All commercial outfitters shall be licensed as such by the State of Colorado. (d) When hunters are utilizing the Parking Lots and Trail Segments, all weapons shall be unloaded and kept in cases. (e) The Parking Lots shall not be utilized to clean or dress animals killed by hunters. (f) AVR shall prepare and provide information regarding the hunter reservation system to the Pitkin County Open Space and Trails Board for dissemination to hunters and outfitters. Such information shall include the telephone number or email address to be utilized in making reservations. (v) Use of the entire Trail Easement shall be limited to daylight hours, except in case of emergencies. For the purpose of this restriction, daylight hours will be deemed to include one hour before sunrise and one hour after sunset. (vi) The Bike /Equestrian spur (Segment B) shall be closed from November 1 to May 1, each year. (vii) Use of the entire Trail Easement during the winter months shall be limited to hikers, cross country skiers and snowshoers. (viii) No portion of the Trail Easement shall be available for use by the public until construction has been completed pursuant to paragraph 7 of this Agreement, until the trail has been accepted by the BOCC pursuant to paragraph 8 of this Agreement and the BOCC has provided proof of insurance pursuant to paragraph 11 of this Agreement. (ix) Segment F shall be an easement for access along the existing Aspen Valley Ranch Road (or as that road may be relocated) and shall not be a separately constructed trail. It shall be utilized only if access over the West Ranch Trail dedicated by the Aspen School District is unavailable. -4- 1 RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 22 OF 44, Janice K. Vos Caudill, Pitkin County, CO • 4. Grant of Parking Easement. AVR hereby grants and conveys to the BOCC, for the exclusive use and benefit of the public (which shall include AVR Permittees), an irrevocable and perpetual parking easement (the "Parking Easement ") over the Parking Lots for the purpose of providing parking to members of the public. The Parking Easement shall be an easement appurtenant to and burdening the ownership of the AVR Property. The Parking Easement may be used and enjoyed by members of the public, subject to such reasonable regulations as the BOCC may enact. Use of the Parking Lots shall be limited to recreationalists and BOCC Permittees engaged in maintenance of the Parking Lots or trails. Overnight parking may be allowed at the discretion of the BOCC, but camping in the Parking Lots shall be prohibited. The BOCC shall have the right, but not the obligation, to erect within the Parking Easement signage concerning usage of the Parking Lots, Trail Easements and surrounding areas. 5. Reserved. 6. Grant of Maintenance Easement. AVR hereby grants and conveys to the BOCC, for the use and benefit of the BOCC Permittees, an irrevocable and perpetual maintenance easement (the "Maintenance Easement ") over the Parking Lots, Trail Easement and such portions of the AVR Property adjoining the Parking Lots or Trail Easement as may be reasonably necessary in connection with the BOCC's maintenance rights pursuant to paragraph 8(b) below. The Maintenance Easement shall be non- exclusive in all respects, and AVR reserves all rights to use and enjoy the Maintenance Easement for any purposes which do not materially and unreasonably interfere with the BOCC's ability to perform maintenance upon the trails subject to the Trail Easement or the Parking Lots. 7. AVR Construction Obligations. AVR agrees to construct, at its sole cost, The Parking Lots and all Trail Segments subject to the Trail Easement in accordance with the specifications set forth on Exhibit C attached hereto and incorporated herein. The Parking Lots and the Trail Segments shall be constructed in a good and workmanlike manner, and the Trail Segments shall be constructed by qualified trail construction personnel reasonably acceptable to the BOCC. AVR shall complete construction of the Parking Lots and Trail Segments on or before December 31, 2011 unless such deadline is extended by the BOCC. 8. Acceptance by BOCC: Maintenance of Parking Lots and Trails. (a) Upon completion of the Parking Lots and Trail Segments, AVR shall notify Pitkin County staff ( "County Staff') that the Parking Lots and Trail Segments are ready for acceptance and shall provide to the County Staff evidence that the Parking Lots and Trail Segments have been constructed and completed in accordance with Exhibit C. Upon satisfaction of this requirement, the County's Staff or designated consultants shall promptly inspect the Parking Lots and Trail Segments and shall, within five (5) days following the inspection, notify AVR in writing of non - acceptance or acceptance of the Parking Lots and Trail Segments. If the Parking Lots and Trail Segments are not accepted, the reasons for non- acceptance shall be stated and reasonable corrective measures shall be outlined. If any corrective measures are required, AVR shall notify County Staff upon completion of such corrective measures, and the same procedures shall apply to the County Staff's review and inspection of the corrective measures until such time as the Parking Lots and Trail Segments are ready for final acceptance. -5- RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 23 OF 44, Janice K. Vos Caudill, Pitkin County, CO (b) Following final acceptance of the Parking Lots and Trail Segments by the BOCC, AVR and its successors in interest shall have a continuing obligation to maintain all Trail Segments to the standards set forth in Exhibit C. Should AVR fail in its obligation to maintain the Trail Segments, the BOCC shall have the right, but not the obligation, to do so on AVR's behalf ten calendar days after the provision of notice to AVR. Should the BOCC elect to maintain the Trail Segments on AVR's behalf as provided in this subparagraph, it shall provide AVR with a bill for maintenance expenses within 30 days following the completion of the maintenance activities for which the BOCC seeks reimbursement. Should AVR fail to remit payment to the BOCC within 30 days of the date of the bill for maintenance expenses, the BOCC shall be authorized to assess the unpaid amount against the AVR property. The amount so assessed shall be a lien against the AVR property until paid and shall have priority over all other liens except general taxes and prior special assessments. The assessment may be certified to the Pitkin County Treasurer and collected and paid over in the same manner as provided for the collection of taxes. The BOCC shall maintain the Parking Lots. 9. Default. If a Responsible Party fails to discharge its obligations hereunder, the other Party may give written notice thereof to the Responsible Party. If the Responsible Party does not cure such failure within sixty (60) days after its receipt of such notice, then the nondefaulting Party shall have the right, but not the obligation, to cure such failure. If a Party elects to cure the other Party's failure under this paragraph, then the defaulting Party shall, within ten (10) days after written demand by the other Party (accompanied by invoices setting forth in reasonable detail the costs incurred by such Party), reimburse it for the reasonable costs and expenses incurred in connection therewith, together with interest thereon from the date of such demand until paid at the rate of 8% per annum. Nothing herein shall be construed to grant AVR the power to enforce the Pitkin County Code. 10. Mechanics' Liens. If, by virtue of any work undertaken by, through or under a Party pursuant to this Agreement, any mechanics' lien claim is recorded in the Records against any real property interest of the other Party (the "Liened Party "), then the Party responsible for the payment of the work giving rise to such lien claim shall cause such lien claim to be released and discharged of Record (by payment, bonding or other available process) within sixty (60) days after recordation of the claim, provided that in any case such release and discharge must be secured prior to any foreclosure of such lien or any conveyance or disposition of the encumbered property interest pursuant to such lien. If such release and discharge is not timely secured, then the Liened Party, at its election and without obligation to do so, may secure the release and discharge of the lien claim through its own efforts, whether by payment, bonding or otherwise, and the Liened Party shall be entitled to recover from the Responsible Party all costs and expenses, including reasonable attorneys' fees, that the Liened Party may incur in connection therewith within thirty (30) days after written demand therefor (accompanied by invoices setting forth in reasonable detail the costs incurred by such Party), together with interest thereon from the date of such demand until paid at the rate of 8% per annum. 11. Insurance. The Parties acknowledge and agree that this Agreement creates an easement for Recreational Purposes as defined in C.R.S. Section 33 -41 -101, et seq., and the easements created herein are subject to the limitations of liability set forth therein. BOCC further agrees to add AVR (and, upon notice to the BOCC of a change in ownership, its successors and assigns in the ownership of the underlying real property traversed by the Trail -6- )1(9 RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 24 OF 44, Janice K. Vos Caudill, Pitkin County, CO Easement, or any part thereof) and Aspen Valley Downs Homeowners' Association, Inc. (on its own behalf and on behalf of its Members) ( "AVD ") as additional insureds on its comprehensive general liability insurance policy, which insurance shall be maintained by the BOCC to provide protection against liability from claims arising out of the use of the Trail Easement. Such insurance shall be carried in amounts not less than.the liability limits specified in C.R.S. Section 24- 10- 114(1), as it may be amended from time to time, and shall provide AVR and AVD and its successors and assigns with thirty (30) days advance written notice prior to cancellation or termination. BOCC shall, upon written request therefore from AVR, AVD or any successor or assign, provide a Certificate of Insurance as verification of compliance with these requirements. 12. Rio Grande Trail Easement. AVR hereby grants an easement, in a mutually- agreeable alignment across the portion of the AVR Property lying to the south of River Road, between that road and the Rio Grande Trail, that will allow non - motorized access to the trail by hikers, bikers and horseback riders. The County will be responsible for the preparation of such documents and legal descriptions as may reasonably be required to establish and describe the easement and shall be responsible for the construction, maintenance and repair of a trail to be located within the easement. While the parties intend that the trail alignment selected shall be mutually - agreeable, AVR shall not unreasonably withhold its consent to an alignment proposed by the BOCC. 13. Remedies Cumulative. The Parties' rights hereunder shall be cumulative with and in addition to, and not exclusive of, any other remedies available to the parties at law or equity for any breach or default of their respective obligations hereunder. Notwithstanding the foregoing, no breach of this Agreement shall entitle either Party to cancel, rescind or otherwise terminate this Agreement. 14. Covenants Running With the Land. The BOCC and AVR hereby agree • that the covenants and agreements set forth herein shall be binding upon and inure to the benefit of their respective successors and assigns, and shall run with the land. This Agreement shall be recorded in the Records, and shall serve as notice to and shall be binding upon and inure to the benefit of the Parties and upon the successive owners of the AVR Property. 15. Subordination. It is AVR's intent that all deeds of trust, mortgages and other financing instruments encumbering the AVR Property (collectively, "Mortgages ") shall be junior and subordinate to the Easements and other rights created by this Agreement. In furtherance of such intent, AVR shall cause the holders of any and all Mortgages encumbering the AVR Property to consent to this Agreement and to acknowledge that its Mortgage is subordinate to this Agreement. 16. Estoppel. Each Party, upon the request of the other Party, will certify to any person or entity designated by the requesting Party as to the existence or absence of any breaches of this Agreement. 17. Notices. Any notice or demand under this Agreement shall be in writing and shall be deemed given, received and served (a) upon personal delivery or upon verified transmission by telecopier or similar facsimile transmission device, (b) on the third business day after mailing, postage prepaid, by registered or certified mail, return receipt requested, or (c) on -7- H 7 RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 25 OF 44, Janice K. Vos Caudill, Pitkin County, CO the first business day after receipted delivery to a nationally recognized courier service which guarantees next - business -day delivery, delivery charges prepaid, in each case addressed as follows: If to the BOCC: Pitkin County Attorney's Office 530 E. Main St., Suite 302 Aspen, CO 81611 Attn: Facsimile: (970) 920 -5198 If to AVR: Aspen Valley Ranch, LLC 3301 Windy Ridge Parkway Suite 340 Atlanta, GA 30339 Attn: Richard Holland Facsimile: (770) 643 -1885 With a copy to: David J. Myler The Myler Law Firm, P.C. 211 Midland Avenue, Suite 201 Basalt, CO 81621 18. Aspen Valley Downs Homeowners' Association. The parties acknowledge and agree that the provisions of Sections 3(b)(i), (ii), (iv), (v), (vi), (vii) and (viii) benefit and shall be enforceable by the Aspen Valley Downs Homeowners' Association, Inc. By its signature below, Aspen Valley Downs Homeowners' Association grants its consent, on its own behalf and on behalf of its Members, to the terms of and uses described in this Agreement. 19. Entire Agreement. Each Party acknowledges that this Agreement sets forth the entire agreement and understanding of the Parties with respect to this Agreement and that no oral or other agreements, understandings, representations, or warranties, other than those set forth in this Agreement, exist with respect to the subject matter hereof. 20. No Waiver. In no event shall any failure by either Party to enforce any covenant or restriction contained in this Agreement be deemed a waiver of the right to enforce such covenant or restriction thereafter. 21. Governing Law. The terms and provisions of this Agreement shall be construed and enforced in accordance with the laws of the State of Colorado. Venue for any and all disputes shall be in Pitkin County District Court. -8- RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 26 OF 44, Janice K. Vos Caudill, Pitkin County, CO 22. Counterparts. This Agreement may be executed in counterparts, each of which shall be deerned a duplicate original. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. THE BOCC: THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, a political • subdivision of the State of Colo at .111 By: _ W. 4 841E,Mr , Chair AVR: ASPEN VALLEY RANCH, LLC, a Delaware limited liability company By: RV — AVR, LLC, its Administrative Member By: Resort Ventures, LLC, its Manager By: Lam, ____:4 Richard F. How, Manager AVD: ASPEN ALLEY VN HOMEOWNERS' ASS t, ATION, IC.. a Colorad• nonprofit corp r: ion By f l.. OA �I � � President 1 1 ` I T , r Sri or Ai -9- #q RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 27 OF 44, Janice K. Vos Caudill, Pitkin County, CO • STATE 06 ,,,,do 0 _ n ) ss. COUNTY OF 1" i r/•c 9 The foregoing instrumei, was ac1C�owledged before me this day of rd)s A y , 2010, by V)(4.cL4 Y'mCLrcfs , as Chair of the Board of County Commissioners of Pitkin County, Colorado, a political subdivision of the State of Colorado. Witness, ::+�•.; �d official seat. t My c s1 : �- s: 7— i 5' —)V • ' LINDA i • GuSTAfSON 3 5 • . S, o : y ' ublic ' +� 9 44.41 . .••' j pm5rt;r1) STATE OF ) ) ss. COUNTY OF846 CC ) The foregoing instrument was acknowledged before me this aU day of 2010, by Richard F. Holland as Manager of Resort Ventures, LLC. Witness my hand and official My commission expires: • S. otary Public '+ •• •..••••' STATE OF CoLOILADO ) . ,17E . ) ss. COUNTY OF Pl5 \i,l�,) ) The foregoing instrument was acknowledged before me this 13*" day of , 2010, by 4j j as President of Aspen Valley Downs HoniLowners' Association, Inc., a Colrado nonprofit corporation. Witness my hand and off atltseal:>katt s' n., .•r. My commission expires: Ca r� j' 1. • *pia ;i::► +i,,. L�tc t i t s e •�' 'I . tr. ary Public Agreement for Grant and $cce ante fra Easement {]$] 6] O.doc S r "`. cA [C / • - 10 - A 1') RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 28 OF 44, Janice K. Vos Caudill, Pitkin County, CO EXHIBIT A to EASEMENT AGREEMENT (Legal description of AVR Property) PARCEL A: HOMESTEADS 1 THRU 9, AH, AGRICULTURAL FACILITIES PARCEL AND PARCELS I THRU VII, RURAL AND REMOTE PARCELS, according to the Subdivision Exemption Plat ASPEN VALLEY RANCH, recorded October 14, 2005 in Plat Book 76 at Pages 4 thru 18, inclusive, as Reception No. 516274 and Corrected Sheet 1, recorded May 4, 2006 in Plat Book 79 at Page 31 as Reception No. 523731. PARCEL B: A tract of land situated in Lot 1, Section 4, and Lot 1, Section 5, Township 9 South, Range 85 West of the 6 P.M., more fully described as follows: Beginning at a point on the West line of Said Lot 1, Section 5 whence the Northwest corner of said Lot 1, Section 5 bears N 00 °06'08" W 628.22 feet; thence N 00 °06'08" W 628.22 feet to the Northwest corner of said Lot 1, Section 5; thence N 89 °59'59" E 992.08 feet along the North line of said Lot 1, Section 5 and Lot 1, Section 4; thence S 00 °00'00" W 823.12 feet to the center of Dry Woody Creek; thence S 45 °11'00" W 23.22 feet along the center of Dry Woody Creek; thence S 52 °12'00" W 195.35 feet along the center of Dry Woody Creek; thence S 79 °41'00" W 263.65 feet along the center of Dry Woody Creek; thence N 56 °00'00" W 676.38 feet to the point of beginning. BEING HISTORICALLY DESCRIBED AS FOLLOWS: A tract of land situated in Lot 1, Section 4, and Lot 1, Section 5, Township 9 South, Range 85 West of the 6 P.M., more fully described as follows: Beginning at a point on the West line of Said Lot I, Section 5 whence the witness corner to the Southeast comer of said Section 5 bears S 04 °33' E 2572.12 feet; thence N 626.37 feet to the Northwest corner of said Lot 1; thence East 989.82 feet along the North line of said Lot 1, Section 5 and Lot I, Section 4; thence South 823.52 feet to the center of Dry Woody Creek; ' thence S 45 °11' W 23.22 feet along the center of Dry Woody Creek; thence 79 °41' W 263.65 feet along the center of Dry Woody Creek'; thence N. 56° W 674.97 feet to the West line of said Lot 1, Section 5, the point of beginning. ;90I5.1 IR.UCD OSI3O,ID 11' 34 AM A- 1 6 c RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 29 OF 44, Janice K. Vos Caudill, Pitkin County, CO EXHIBIT B to EASEMENT AGREEMENT (Map Depicting Location of Trail Easement, including all Trail Segments) • • 695015.1 JTMACD 07;16.'103.44 PM B -1 • • '-) 7,— RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 30 OF 44, Janice K. Vos Caudill, Pitkin County, CO EXHIBIT C to EASEMENT AGREEMENT (Specifications for Trail Segments) Treadwidth 36" Maximum grade 12% for a maximum length of 50 feet. Trail outslope or inslope must be a minimum of 2% and maximum 4% No switchbacks, only climbing turns to allow bike travel. Remove all topsoil to the mineral soil layer. Only use rock waterbars, rolling or grade dips to provide drainage. Typical Trail Cross Section, Talus and Rubble Rock Section and Outsloped Climbing Turn details are attached. • 8SSO15. 1 JTDLACD OS /30/10 11.;6 AM C' 1 RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 31 OF 44, Janice K. Vos Caudill, Pitkin County, CO TYPICAL TRAIL CROSS SECTIONS NOT TO SCALE • Amount of bench varies with % of TraHbed Width sideslope. Outslope troilbed 6 -10 %. Trailbed Location Width (mm) Slope rounding in / commom material 2 Ou • a A. , ....., C L , , Above 50% Sideslope .. Fuil Yenoh � i Slope rounding in , commom material? \ ii;�s;cp° — _ I 1 \ '--' Fiil slope Slope rounding in commom material Bolcn:iria �,cCt�Cn � I C I iG l0 30% Fill slope Sideslope i ~ / i AI, , I Trailb 1 r % to 10:� Sideslope 4/96 91 2 -1 RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 32 OF 44, Janice K. Vos Caudill, Pitkin County, CO TALUS AND RUBBLE ROCK SECTION NOT TO SCALE • e � Orgincl Slope Line \ Cap Rocks \` \ / Troilbed Minimum mm cover \ 4, 0,. t ( of _Uiiamateriel. .? Fr tiOn or i borrow ! 1\ .. Geotextile \ \ / ,,.:,,, t 7 5• ° . 00 N . ,° 0 • l C d j \ nom ' , , 'W �` 2 �� �/ �\ - Batter not \ a,` � ?', ■�` , �' _��� � steeper than �� '\ / x \, i \ -k ,, Hcnd place and l key in outer rocks. i 4/96 91 2 - 3 RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 33 OF 44, Janice K. Vos Caudill, Pitkin County, CO OUTSLOPED CLIMBING TURN NOT TO SCALE r� // // cut Slo j F In Upgrade slope to outs! I 1 Transition sectio 5 n I . � meters mini r mum j l / I / // • \ Turn %// Iu'a ntoin constant grade 1 Section // through turn. //' Points of curve / // — -% \ / / %/- 1_. i /' . / / __1_,-,----.- '/� - -- /// j// /// / /"Fill `c , / / '"/ Centerline of climbing turn ,'„ c:, FLAGGED or STAKED ON THE GROUND. PLAN VIEW Through cuts are / �Tj��� permitted through / ,/ � c.rt,3 turns \ / /i \ / / \ \ / \ Inslope _� \ / \ \ / \ \ / �� / \ \i / \ \i \�i \ 7x , 7\ � / \ \ % \� \ \ \ \ \ \ \\ Ou t sl op e _q, • \� \i \ \ \ % \ � // / // / / /jj / /j / / /, \ \ / \ // \ \ // ,//7, / // / / / / j/ . / / /// SECTION A -A 4/96 91 2-1 0 RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 34 OF 44, Janice K. Vos Caudill, Pitkin County, CO EXHIBIT D to SETTLEMENT AGREEMENT (Exemption Plat) 397903.1 1TMACD 03/30/101.23 PM 12 7 RECEPTION #: 583884, 10/28) 0 211 at 11:3142 AM, 35 OF 44� Janice K. Nibs Caudill, Pitkin County, CO 10 1.111 - e � , 1 ",o g a s t` d : ,1 / 7 } ; r f (c i f 'E ` r r3 n �t 1 a = = .it 4.- p 1', 47, 4/ b .11 g. ti ; '� �,* 2 ; -i ` ,_ 1 ' ' , t a: °3 ee"2 =li i i= 3 s e a : 9 f= 1/ it pox } e x f & t 4 kl H 33 t I • 3 § 1 g 144 Zit!! i ai" i is f e8 Fsi q /`1.,,,---" s 11 ill l 4' ti th sit: '§ . i r rti t f L 1 N ' s ii g 'R . c Z a3s^ : i i S �a Z! 1i 101 pt. 11 �� 'gljy g S , Ii.... , ... i•i s 1 o k ` . I` III ,p g y a ;' 2 F qp1 $ 5 4 =Rg lit To i t 'i Si : 211s = t $ si C 1; sr f° s�. $ g'@� }.e o f v 13 t � 41;1 .g af 4 { IPA i E i 1 Q .,1 l ' ok _ _ 6g f3 3 `s `� "q i ia it S i ll 1.3 ,.. rill I 8 t ii a t i i 44 1 a+ t i a. g ° �, r ! = s,p R t g 2 i: ° 2 f .1 l e = ! a = y L # � s € `f a 1`y ip4s 3 t i v' ; t s a kl g a, ? -- i ' e i i i g1i o C 1" i= .4 �t . iii 0 r t 4 s / i at i3 t g s ^a 4 1 /'• n p . o A a..r.4 u n 1 C 1 A %+ K� � f 4 � a s - a I ,iilii gz I k 1.1 K �. 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' :', t' t 1.. la Izji : , - 1 04. 7 SA 4 '''''' \ .))\ .\ ■ % t .. ,,,,, --- -- ca * T'; 4 \ . ,''' '', \N *.' ..... %‘•.` . „, ?,, f"..A •-•., o, Al , .■ e . , ,' 6g opt ' i: 0 Z 4..' ,,,••• A ,,. , • . t.4 • , 73 t C. ' t' A' :,:-. . . ,IA, • 1 %., ',,,,,•••" 0 ' ' tli ' ' ' '•., `t r '1, :, ,* . ;1 ' ZS si * c ,r , '• , ,, „ i, '.... 0 ''" 0 / 11 ,..- •,> `.,. ------------------- a i % _.--- -/"--------- RECEPTION#: 583884, 10/28/2011 at 11:31:42 AM, 39 OF 44, Janice K. Vos Caudill, Pitkin County, CO • ' ! e \ I 11111t1111 — - v. , • see t . I 1 i. 1 .,: c ,(Y.' , . - -.7'. ...'' " • Ii3P31 .4. r5 . dtlitl i .. 2 , ;Z toP \\ • 1 ! , - ,- .iz .,, •i- // ,....' //' • • — ! 4 b, .4 . ' 's/' 7 /./. , +.... hi i / e, • • `-'),_ ,....R. ! ,._., , ' • , . . . .) P , 4: 1 ,.'• : c:„. 4 .t• ?:: • • • • : 1 - AZ= t',. • • • • il 1 ,9 Y ZZ:', I ■ t:73 1.9 T. ••• ' . . A 17,,,,-.•-•,.. ., ----. , , • R ■•._ ,...,,, . 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Vos Caudill, Pitkin County, CO • EXHIBIT E TRAIL EASEMENT This Trail Easement (the "Trail Easement ") is made and entered into this day of , 2010, by and between ASPEN SCHOOL DISTRICT (hereinafter referred to as "Grantor "), the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, as the governing body of Pitkin County, Colorado (hereinafter referred to as "Grantee "), and ASPEN VALLEY RANCH, LLC ( "AVR "). RECITALS: A. Grantor is the owner of a parcel of land in Pitkin County, Colorado, known and • referred to herein as "West Ranch." West Ranch is described on the Final Plat of West Ranch Subdivision, recorded in Plat Book 48 at Page 30 (Reception No. 426099) of the Pitkin County records (the "Exemption Plat "). - B. Grantor desires to establish a public Trail Easement within and across West Ranch, subject to certain restrictions as set forth herein. C. Grantee desires to accept the public Trail Easement described herein, subject to such restrictions. D. AVR is the owner of land adjacent to West Ranch which is known as Aspen Valley Ranch. The trail within the Trail Easement connects to and will be part of an extensive trail system located within Aspen Valley Ranch. AVR shall be responsible for the construction and maintenance of the trail within the Trial Easement (the "Trail ") as described herein. NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantor, Grantee and AVR agree as follows: 1. Grant of Trail Easement. Grantor hereby grants, transfers and conveys unto Grantee for the use and benefit of the general public, by quit claim only and without warranties of title, a non- exclusive easement and right of way (the "Trail Easement ") over and upon West Ranch as depicted and described on Exhibit A, subject to the restriction and limitations set forth herein. 2. Trail Use Restrictions. Use of the Trail Easement by the public, including the Trail • to be constructed and maintained therein, shall be limited to hiking, horseback riding and bicycling, between sunrise and one (1) hour after sunset twelve (12) months of each year. No dogs, except on a leash, and no motorized vehicles, except in emergencies, shall be allowed within the Trail Easement. Use of the Trail Easement by hunters, including commercial outfitters, shall be subject (O RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 41 OF 44, Janice K. Vos Caudill, Pitkin County, CO to the applicable provisions of the Agreement for Grant and Acceptance of Trail Easement dated , 2010, between AVR and Grantee, recorded as Reception No. in the office of the Clerk and Recorder of Pitkin County, Colorado. Grantor shall have no obligation for the enforcement ofthe foregoing restrictions, nor any other provisions ofthis Trail Easement, against users thereof or other third parties. 3. Construction and Maintenance. AVR shall be responsible for construction of the Trail within the Easement in accordance with applicable standards for trails adopted by Pitkin County, and shall also be responsible for its reasonable maintenance and repair. Construction of the Trail shall commence no later than July I, 2011, and shall be completed within a reasonable time thereafter. Neither the Grantor nor the Grantee shall have any responsibility for the maintenance, repair, replacement or upgrade of the Trail. AVR may assign the maintenance and repair responsibility to the Aspen Valley Ranch Owners' Association, whereby AVR's responsibility for maintenance and repair shall terminate. Should AVR fail in its obligation to maintain the Trail, Grantee shall have the right, but not the obligation, to do so on AVR's behalf ten (10) calendar days after the provision of notice to AVR. Should Grantee elect to maintain the Trail on AVR's behalf, it shall provide AVR with a bill for maintenance expenses within thirty (30) days following completion of the maintenance activity for which Grantee seeks reimbursement. Should AVR fail to remit payment to Grantee within thirty (30) days of the date of the bill for maintenance expenses, Grantee shall be authorized to assess the unpaid amount against AVR's property. The amount so assessed shall be a lien against AVR's property until paid and shall priority over all other liens except general taxes and prior special assessments. The assessment may be certified to the Pitkin County Treasurer and collected and paid over in the same manner as provided for the collection of taxes. 4. Maintenance Easement. Grantor hereby grants and conveys to the AVR and Grantee an irrevocable and perpetual maintenance easement over and upon the Trail and Trail Easement as may be reasonably necessary in connection with the maintenance rights and obligations of AVR and Grantee pursuant to paragraph 3, above. The maintenance easement shall be non - exclusive in all respects and Grantor reserves all right to use and enjoy the Trail and Trail Easement for any purposes which do not materially and unreasonably interfere with the ability of AVR or Grantee to perform maintenance pursuant to paragraph 3, above. 5. Grantee's Obligation to Insure. The parties acknowledge that the Grantor and AVR are entitled to the benefits, protections and limitations on liability afforded by Colorado law, including C.R.S. Sections 33 -41 -101 through 105. Grantee agrees to add Grantor and AVR (and their successors and assigns) as additional named insureds on its comprehensive general liability insurance policy, which insurance shall be maintained by the Grantee to provide protection against liability from claims arising out of the use of the Trail Easement. Such insurance shall be carried in amounts not less than the liability limits specified in C.R.S. Section 24- 10- 114(1), as it may be amended from time to time, and shall provide Grantor and AVR, and their successors and assigns with thirty (30) days advance written notice prior to cancellation or termination. Grantee shall, upon written request therefor from Grantor or AVR, or any successor or assign, provide a Certificate of Insurance as verification of compliance with these requirements. 2 tl RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 42 OF 44, Janice K. Vos Caudill, Pitkin County, CO • 6. Attorneys' Fees. In the event the interpretation or enforcement of this Trail Easement should ever become the subject of litigation between the parties, or their successors and assigns, the substantially prevailing party shall be entitled to an award of its reasonable costs and attorneys' fees incurred in connection therewith. 7. Binding Effect/Amendment. This Trail Easement shall be binding upon and inure to the benefit of the parties hereto and the heirs, personal representatives, successors and assigns. The Trail Easement shall not be assignable by Grantee. The benefits and burdens hereof shall run with the title to West Ranch. This Trail Easement may only be amended by a writing signed by all parties. ASPEN SCHOOL DISTRICT By: Date: BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY • By: Date: ATTEST: By: ASPEN VALLEY RANCH, LLC BY: RV -AVR, LLC, Its Administrative Member BY: RESORT VENTURES, LLC, Its Manager By: Richard F. Holland, Manager Date: 3 1� RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 43 OF 44, Janice K. Vos Caudill, Pitkin County, CO • STATE OF ) ) ss. COUNTY OF ) The foregoing Trail Easement was acknowledged before me this day of , 2010, by , as of the Aspen School District. WITNESS my hand and official seal. My commission expires: Notary Public STATE OF COLORADO ) ) ss. COUNTY OF PITKIN ) The foregoing Trail Easement was acknowledged before me this day of , 2010, by on behalf of the Board of County Commissioners of Pitkin County, Colorado. WITNESS my hand and official seal. My commission expires: Notary Public STATE OF ) ) ss. COUNTY OF ) The foregoing Trail Easement was acknowledged before me this day of , 2010, by Richard F. Holland, as Manager of Resort Ventures, LLC, Manager of RV -AVR, LLC, Administrative Member of Aspen Valley Ranch, LLC. WITNESS my hand and official seal. My commission expires: Notary Public G: \Client'Aspen Valley Ranch (formerly ResortVentures) \Trail Easement 083010 as Exhibit E.v +pd 4 (0 (° RECEPTION #: 583884, 10/28/2011 at 11:31:42 AM, 44 OF 44, Janice K. Vos Caudill, Pitkin County, CO 1 / / / .n, • I "�� / / r ///P / // / / /.f // / P. g I / /.1 /// /// ■ Ub / / ,y /' / / / rl / /.. / / / /// 1/ / 43' $. / 1 % /)./ b i 1 • / . y . 63 , %? / V O 4 / i 'Q) t g / Al i x /' �,� / / 'N {�� / 'x h , / t ` / � � / / *! a " e ) /. !� di 't k. / // t L./ / :i.,„ � c � 'y4 A Fl u a4 Z‘ ti 4 t+ , a�? ■ / ` : A 1 . tg 1 I 1 4, \ ' (07