HomeMy WebLinkAboutbocc.con.127.1996 aa¢�ae�E �;:.,, -..•<
12/�0/1996 12:37A F�G 1 OF 3r REC DOC NO7 i��'� ;;'
r. S7LVTp UqVIS F'ITN,1N CDUN7Y CLFRN, � kECORDER 1E7,aQ ��r ,�
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DEED OF CONSERVATION EASEMENT "}; ; `�
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THIS DEED OF CONSERVATION EASE�ENT (the "Conservation Easement") is ':
made and entered into this�'�'day of Q�; 19� etween the Windstar Land Conservancy r�•��'
("Grantor")and the Aspen Valtey Land Trust("AVLT") d the Board of County Commissioners : ; •.
of Pitkin County, Colorado, a body corporate and polit� (collectively,the "Grantee"); Rocky j:�`--
Mountain Institute("RNII"),and The Windstar Foundation(the"Foundation").
RECITALS
C� Y .
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WHEREAS,Grantor is the record owner of that certain real property in Pitkin County, ! '
Colorado,consisting of approximatety 957 acres,which is more particularly described on Exhibit ` • '
"A"attached hereto and made a part hereof by this reference,and which is referred to herein as �
the "Windstar Property';and
WHEREAS,the Windstaz Property contains critical wildlife habitat and a portion of a
crirical elk migration corridor,providing etk access across private lands to winYer and summer
ranges; and also contains open spaca, agricuttural, scenic and ecological features and va[ues �'
important to the Crrantor,the residents of Pitkin County,Colorado,and the people of the State i?'
of Colorado(the"Conservation Values");and �.
WHEREAS, preservation of critical wiidlife habitat, open space and agricultural �
operations conforms with Policies 2-120(Scenic Quality),2-160(Wildlife Management)and 2- �
240(Compatibiiity with Agricultural Lands and Operations)of the Pitkin County Land Use Code; '•
and �'
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WHEREAS,preservation of these natural features and values will yield sabstantial public
� benefit;and
WHEREAS, the undeveloped portion of the Windstaz Property, consisting of '
approximately 927 acres(referred to herein as ihe"Conservation Area")remains in a substantially
undistwbed and natural state to be documented in an inventory of the tand's Conservation Values •
to be prepared as soon as weather and conditions permit following the conveyance of this Deed,
which inventory will be kept on file at the offices of the Grantee;and
WHEREAS,Grantor desires and intends to restore,enhance,preserve and maintain the
ecologic health,the wildlife habitat,open space character and scenic qualities and values within
and upon the Windstar Property, and specifically within and upon the Conservation Area,by
encumbering the Windstar Property in its entirety with a Conservation Easement for the use and
benefit of Grantee,pursuant to the provisions of Seotion 38-30.5-101,et se�c.,Colorado Revised � •
Statutes,which provides for maintenance of these values by the continuation of land use patterns,
including,without limitation,those relating to farming and passive recreational uses existing at
the time of this gzant which do not significantly impair or interfere with those values;and
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WI�IEREAS,Grantor wishes to reserve a bui(ding envelope of approximately thirty(30) ;:;� .+,
acres(referred to herein as the"Reserved Area"),as depicted on the attached map of the Windstar ti•
Property(Exhibit"B"),in which certain limited development may occur as specified,defined and .,�.• •_�✓
timited by the terms of this Conservation Easement;and
WHEREAS,Grantee is a"qualified conservation organization"as defined by the Intemal ���
Revenue Code;and -
WHEREAS,Grantor,as owner of the Windstar Property,owns the affirmative rights to ' ' r
identify,preserve and protect in perpetuity its open space character and its significant reiatively k �
natural features and values and fiirther intends,as owner of the Windstar Property,to convey to �t •
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Grantee the ri�ht to preserve and protect the Conservation Values of the Windstar Property in l , •
perpetuity;and ''•
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WHEREAS, by acceptance of this Conservation Easement, Grantee acknowledges its �-:�
commitment to honor the intentions of Grantor as e�pressed lierein to preserve and protect in �
perpetuity the Conservation Values oF the Windstar Propeny for the benefit of this a��d future = 1
Lenerations: �'�''�
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CONVEYANCE
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� NOW, THEREFORE, for and in consideration of the facts recited above and of the i
mutual covenants contained fierein,and for other good and valuable consideration.the receipt and '
sufficiency of which is hereby confessed and acknowledged,Grantor hereby grants and conveys
to Grantee,and its assigns.a perpetuat consen�ation easement in gross,pursuant to Section 38-
30.5-101, et s�eq., Colorado Revised Statutes{the "Conservation Easement"), over, across and
upon the Windstar Property as ]egal]y described on Exhibit "A", subject to the terms and
. conditions hereinafter set forth. Grantee hereby acknowledges,accepts without reservation and
� agrees to be bound by the terms and conditions of this Conservarion Easement. r
1, Purnose. It is the essential purpose of this Conservation Easement to preserve and
protect, in perpetuity,the natural,ecological,wiIdlife habitat scenic,open space, and aesthetic a
features and values of the Windstaz Property, and in particulaz, the Conservation Area. In
Furtherance of the foregoing objective, this Conservation Easement is intended to establish
permitted uses of the Conservation Area which are consistent with the purposes of the
Conservation Easement, and to restrict ihe level of development and human activity on the
Conservation Area in perpetuity. �
1.
2. Grantee's Aftirmative Riehts. To accomplish the purposes of this Conservation , .
Easement,the following affirmative rights are hereby granted to Grantee: `
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(A) To identify, preserve and protect in perpetuity, and in the event of their �i•
degradation or destruction,to compel die restoration of,the natural, ecological, �'
wildlife,open space and scenic features and values of the Conservation Area. ��` �
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(B) To enter upon the Windstar Property as necessary to exercise the rights herein �� .
granted and to enforce the terms hereof. Grantee shall provide Grantor a[least 24 �
hours advance notice prior to each visit to the Windstaz Property by Grantee. '`,:
Grantee's activities hereunder shall not unreasonably interfere with the uses being •' �.,-
cnade of the Windstar Property,consistent with this Conservation Easement,at the ' �
time of such entry. The Grantee shall also have the right of immediate entry to
the Conservation Area,if in its sole judgment.such entry is necessary to prevent
damage to or the destruction of the conservation values protected by this
Conservation Easement.
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(C) To enjoin any activity on, or use of, the �Vindstar Property �vhich is :
, inconsistent �vith the terms and intent of this Conservation Easement and to -
enforce and compel the restoration of sach azeas or features of the Conservation
� Area as may be damaged by such activities,as set forth in paragraph I8 of this
document.
(D) To recommend enhancement measures for the Conservation flrea, or
measures which �vould enhance the habitat, stream viability or other natural
features of the Conservation Area over and beyond the enhancement measures
which Grantor is obligated to perform by the terms of this Conservation Easement,
and to enter upon the propeny to perform such restoration at its own expense or
that of the Grantor, at times which will not unreasonably interfere with the uses
being made of the Windstu Property.
(E) 'fo place one(1)sign,at Grantee's espense,visible to the public, upon the
Windstar Property,identifyin�the role Grantee plays in conserving the Windstar t
Property. Such sign shal!be presented to Grantor,RMI and The Foundation for �
- approval of its design,size and Iocation,which approvai shall not be unreasonably
delayed or withheld.
3. Restoration Reauirements. Grantor,RMI and the Foundation acknowledge that the
Conservation Area is in critical need of restoration,and agree that by virtue of their execution
of this document,tttey shall be jointly and severally obligated to restore the Conservation Area
at their expense to at least the standazd determined as set forth in this pazagraph. Fotlowing
conveyance of this Deed of Conservation Easement and as soon as weather and conditions permit,
; the parties hereto shall select a mutually agreeable wildlife biologist,range ecologist,naturalist
or a combination of the above, to, in conjunction with the prepazation of the Baseline
Documentation described in paragraph 4 below,prepare a scientific analysis of the current state
of the Conservation Area and determine the minimum restoration measures necessary to restore
the Conservation Area;including,but not limited to,elimination of noxious weeds,conection of •
erosion problems and revegetation of eroded areas, restoration of ditches, streams, wet(ands,
ripazian areas and wildlife ponds,and removai of trash and�vire�vhich pose threats to wildiife.
The cost of preparing such Baseline Documentation and scientific analysis shall be bome by
Grantor,R.MI and the Foundation. Restoration or enhancement in addition to the requirements
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set forth in such scientific ana[ysis shaU be done at the sole option and discretion of Grantor, � �.- �:� '
IZMI and the Foundation and shatl be consistent with the scientific analysis. RMI further agrees - �
that, in the event fundraisin� to address such restoration is unsuccessful and Grantor and the :7'',= `�•
Foundation do not otherwise have funds sut�icient to perform the restoration or the ongoing �`�
ste�vardship functions of the Conservation Area retained by Grantor under the terms of this Deed 'c�
of Conservation Easement,ItMI shall assume and be obligated to pay all of such costs.
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In addition, Granior, RMI and the Foundation shall cause the preparation of a
Management Plan for the Conservation Area �vithin one year of the date this Conservation "
Easement is recorded in the records of the Pitkin County Clerk and Recorder,consistent with the '. .
restoration requirements set forth in this paragraph,the protective covenants of the adjacent Lazy r
O Ranch subdivision which address wildlife issues,and the goats set forth in this Conservation �"�
Easement and the Baseline Documentation re�arding preservation of the land and its habitat. The '•`� �
Management Plan shail contain provisions which�vil!assure compliance�vith the terms of this 1., �
Conservation Easement.the restoration requiremenu and the continued health of the Conservation
Area's habitat folfowing restoration,including,but not limited to: standards for pubiic use of the '%
Conservation Area(including limits on numbers of people who may access the Conservation Area r`
at one time and seasonal closures,if necessary,and addressing the use of mountain bikes on the ��
Conservation Area},standards for ttie number of people who can be accommodated by consistent �•_
commercial uses (as defined in paragraph b below), standards for fencing, standards fot the '
construction of new trails or roads (subject to the terrrts of this Conservation Easement},
_ designation of tl�e maximum number of domestic attimals which may be ailowed to graze upon
the Conservation Area at any time and/or the maximum number of davs such animals will be
permitted to graze areas of the Conservation Area(such numbers to be limiied to those number !
of animals or animal grazing days which will not adversely affect the Conservation Values of the �
Conservation ATea),and standazds for the agriculturat operations on the Conservation Area The
Management Plan shall be delivered to Grantee for its revieiv and comments,and Grantor agrees
to incorporate any reasonable changes in the plan Grantee requests which directly impact the
Conservation Valaes of the Conservation Area. Granior,ItMI and the Foundation agree that such
Management Plan shall be binding upon them until amended or reteased by unanimous written
consent of all parties to this Conservation Easement. ,
4. Easement Documentation. In conjunetion with the scientific analysis of the minimum �
restoration requirements set forth in the preceding paragraph,a coliection of baseline data on the Y
Conservation Area and its resources (the "Baseline Documentation"} shall be prepared. The
Grantor hereby granu Grantee or Grantee's agent(s) access to the portions of the Windstaz
Properry necessary in order to prepaze the Baseline Documentation. The data and explanatory €�
text, photographs and maps to be assembled in the Baseline Documentation is agreed by the �
parties hereto to provide an accurate representation of the Conservation Area at the time of this f j
grant, uotwithstanding the fact that the Baseline Documentation wili be prepared afrer the �
effective date of this grani. and the pazties acknowledge that the Baseline Documentation wil! j; '
serve as an objective information baseline for monitoring compliance with the terms of this
Conservation Easement. At Grantor's request,such Baseline Documentation shatl be updated ��
foliowing the completion of the restoration requirements established by paragraph 3 above, in ��
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�vhich case, the updated Baseline Documentation shall establish the standard to which the ' �_
Conservation Area shall be maintained. ,
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The parties agree that, in the event a controversy arises�vith respect io the nature and '
e.ctent of the biological or physical condition of the Consetvation Area,the parties shail not be .'.
foreclosed from utilizing ali other relevant or material documents, surveys, reports, and other
information to assist in the resolution of the controversy.
5. Devetonment of Reserved Arca of Windstar Pronertv. Any development or change I�`'
in use from the development and uses existing as of the date of this Conservation Easement on � :r
the developed portion of the Windstar Property,comprising an area of approximately thirty(30)
acres on the northernmost portion of the Windstar PropeRy,as depicted on the map attached as , .. •
Exhibit B hereto as a building envelope (the "Reserved Area"), shall be consistent with the .
Conservation Values of the Conservation Area and with this Conservation Easement. The fiiting
in or other destruction of the ponds upon the Reserved Area is hereby declared to be inconsistent
with the terms of this Conservation Easement. The construction of a hay barn and the suuctures '
and uses currently existing upon the Reserved Area are hereby declared to be consistent, the
expansion,repair or reconstruction of such structures and the construction of staff housing for a
ma.eimum of twenty(20)empioyees of Grantor,RMl and/or the Foundation in a building not to �.
exceed 25,000 square feet in size or in buildings whose total square footage do not exceed 25,000
square feet in size,and to be located in the immediate viciniry of the existing office bui3ding,
. north and northeast of such building,are also acknowledged to be consistent uses. Grantor,RMI
and the Foundation hereby a�ree that any devetopment added to the Reserved Area following the
date of recordation of diis Conservation Easement shall be clustered so as to use as little land azea
as possible for deveiopment. The agreement by Grantee that the foregoing uses are consistent
with the terms of this Conservation Easement shatl not be interpreted as t6e granting of any
approvals required to be obtained by Grantor from Pitkin County for such uses.and Grantor,RMI �'�
and the Foundation acknowledge that they will siill have to comply with the provisions of the
� Pitkin County Land Use Code and any other simitaz laws in effect at the time nny such
deveiopment is proposed.
Any further proposed development or construction of any structures upon the Reserved .
Area shall be submitted to Grantee for its review and approval under this ternts of this
Conservation Easement and under the Pitkin County Land Use Code,sufficiently in advance of
any planned construction to allow Grantee reasonable time to evaluate such proposal. If Grantee
incurs any costs in evaluating any such proposal,such as,for example,the costs of engaging a
�vildlife biologist or other expert to evaluate the impacts,if any,that the proposed development
might have upon the wildiife and wildlife habitat and other Conservation Values protected by this
Conservation Easement, Grantor shall reimburse such reasonable costs to Grantee. Should
Grantee determine that the proposed development or construction activity would have adverse
impacts upon the Conservation Values of the Conservation Area,Grantor shall either revise its
proposa(to address such impacts or shall withdraw its proposal entirely. Grantee's right to refuse
approval for any proposed development as inconsistent with the Conservation Values protected '
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4A040E 1�/„¢�/1496 11:37A F'6 5 QF ?,� :
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by the terms of this Conservation Easement shall not be limited Yo the provisions of the Pitkin '
County Land Use Code.
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6. Co�sistent Uses. The foliowing uses and practices,though not an e�austive recitsl ti,
of consistent uses arxi practices,are consistent with this Conservation Easement when carried out '
in the Conservation Area in accordance with the provisions of the Management Plan required by �'-,
the terms of paragraph 3 above,and these uses and practices shall in no way be precluded by this
Conservation Easement,to wit:
(A} Guided nature walks and horseback rides, sustainable agriculture,
conservation and environmenYal education programs; Holistic Resource
Management,permaculture and other responsible land management demonstration '.
projects and education programs;and other similaz eommercial ventures. _
{B) Tiie installatian,repair and maintenance of water weils,irrigation systems,
ponds,streams and irrigation ditehes.
(C) The taking of such reasonable steps as aze necessary to control erosion to
prevent sedimentation of streams or ponds on the Windstar Properry.
(D) The instaltation,repair and maintenance of fencing consistent in height and
type of construction with Colorado Division of Wildiife standazds designed to
" prevent interference with wildlife and, in particu]ar, the migration conidor;
however,exceptions to this standard of fence may be appropriate if recommended
by the Management Plan for avoidance of overgrazing by wildlife or for other
reasons.
(E) Such cutting and removal of dead,dying or diseased timber or brush as may
� be reasonably necessary for fire protection or disease prevention purposes,
however,Grantor is encowaged to leave standing dead timber for habitat purposes
to the extent such dead timber does not pose a danger. Except in emergency
circumstances,Grantor shall obtain the prior consent of Grantee for any substantiat
level of such activity,which consettt will not be unreasonably withheld.
(F} The pasturing, grazing, feeding and care of domestic animals that do not
comprise a commercial feedlot.
(G} Passive, non-motorized, non-commercial (except as provided herein) uses,
including hiking,horseback riding and cross-country skiing on existing roads and
trails,or in areas historically used for such purposes,by the public,the Grantor,
the Grantor's assigns and invitees,all in accordance with standazds set forth in the
Management Plan intended to assure non-interferenee with the critical wildlife
habitat,including the elk migration corridor; and development of new uails for
such use(subject to the prior wriften approval of the Grantee,such approval to be
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40d�4�b 1:'_/3��1996 11:37A PG 6 OF s'2
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based upon a determination by Grantee that the location of any trail wiil not ! :s �
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substantially diminish or impair the Conservation Values of the Conservation Area, - .
or is otherwise consistent with this Conservation Easement, and such approval - �,
shaft not be unreasonably withheld). '�,
{H) Continuation of historic farming and ranching(including the cultivation of ' J
alfa[fa),whether for commercial purposes or demonstration purposes.in areas of `
the Conservation Area which were historically irrigated and which comprise
approximately Z00 acres of the northernmost area of the Conservation Area
adjacent to the developed area of the Windstar Property,as depicted on the map
attached l�ereto as Exhibit B; inciuding the use of pesticides so long as used in ,`r
accordance with Colorado State University's Best Management Practices and in ' .
accordance with Iabels;and inciuding piowing and reseeding in accordance with � "
good farming practices;and taking the Conservation Area out of irrigation,so long '
as noxious weed control methods are instituted,native grasses and plants are used
to revegetate d1e formerly irrigated fietds,and other prudent practices are adopted �
to prevent the deterioration of the land once irrigation is terminated.
(I) Performance of any restoration or improvement measures for the habitat or
natural features of the Conservation Area as required herein,or as recommended I
and/or approved by Grantee.
� (J) Maintenruice of roads and trails existing as of the date of this Conservation
Easement and identi6ed in the Baseline Documentation,unless recommended for
closure by the scientific analysis of ihe current state of the Conservation Area.
7. Prohibited Uses. The following uses and practices by Grantor, though not an ,
exhaustive recital of inconsistent uses and practiees, are inconsistent with the purposes of this '
� Conservation Easement and shall be prohibited:
(A) The materiai change, disturbance, atteratioa or impairment of the natura[,
ecologicai, wildlife, open space or scenic features or values of the Conservation
Area,except as otherwise permitted in this Conservation Easement.
(B) Tlie Deve(opment of any Structures or roads on the Conservation Area(as
such terms aze defined in the current version of the Piikin County Land Use Code,
attached hereto as Exhibit"C"),except as permitted in this Conservation Easement
or as requested by Grantor(subject to the prior written approval of the Grantee,
such approval to be based upon a determination by Grantee that the construction
of and proposed location of any Structure or road witl not diminish or impair the
Conservation Vafues of the Cottservation Area,or is otherwise consistent with this •
Conservation Easement,and such approval shall not be unreasonably withheld).
No such approval sha(1 be granted for other than a bona fide agricultural
outbuilding,such as a livestock or hay bam or shed. The prohibition set forth in
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400406 1^c/3Q/1996 11:s7A P6 7 OF 3c
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. this subpara�raph shall continue even if the Pitkin County Land Use Code is _ •
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revised to amend or eliminate such definitions or if the Windstar Property,or any
portion of the Windstar Property, is annexed into a municipality which does not �,,
adopt the same definitions of"DevelopmenY'and"Structure"as e:cists in the Pitkin , "`:
County Land Use Code. •';;;
{C) The removal,destruction,spraying or cutting of native vegetation or timber.
except as permitted in this Conservation Easement.
(D) The introduction of non-native p[ant or animal species to the Windstar •
Property,except as permitted in this Conservation Easement.
(E) The construction of fences along driveways or roads located within and � � '
permitted by this Conservation Easement,except as permitted by this Conservation -
Easement or except as necessary for grazing operations. ,
(F} The exploration for or extraction of minerals,oil.eas,or other hydrocarbons,
soils,sands, gravel,or other materials(but not including water)on or below the
surface of the Windstar Property.
(G) The dumpin� or other disposal of refuse, garbage, or other unsighdy or
offensive material. Notwithstanding anything in this Conservation Easement to the �
. contrary, this prollibition does not make ihe Grantee an owner of the Windstaz •
Property nor does it permit the Grantee to control the use of the Windstar Property
by the Grantor,which may result in the storage,dumping or disposal of hazardous
or toxic materiafs; provided, however, that the Grantee may bring an action to
protect the Conservation Values of the Conservation Area, as described in this
Conservation Easement. This prohibition does not impose liability on the Grantee, -
nor shall the Grantee be construed as having liability ns a "responsible party"
� . under CERCLA or similaz federal or state statutes.
(H) The commercial use of any motorized vehicles ercept for the occasional use
. as may be necessary in conjunction with fazming and ranching, or land
management consistent with the permitted uses.
: (I) The operation of a commercial feed lot.
(,n The construction of a polo or polo crosse field, riding arena or similaz
activities.
(K) The transfer of development rights which were, are or may be appurtenant ,
to the Conservation Area. The parties hereto aeknowledge and agree that all
development rights appurtenant to the Conservation Area are forever extinguished
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by virtue of the grant of this Conservation Easement, with the exception of the �
limited development allowed by pazagraph 6 above. ,- '.
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(L) Subdivision of any portion of the Windstar Property. y'�r• ;.-;r
8. Grantee Anproval of Unlisted but Consistent Uses and Practices:Noticc. In the
event Grantor wishes to engage in a use or practice on the Conservation Area which is not listed
above as a"Consistent Use"or as a"Prohibited Use",Grantor shall send Grantee written notice '�:'.`..�.
of intention to commence or undertake such activity, which notice shall describe aI( material
aspects of the proposed activity. Said notice (and any other notice required or permitted �� r
hereunder)shall be sent by registered or certified mail,return receipt requested,to the following ��'
address or to such other address as Grantor may from time to time be informed of in writing by �, "
Gcantee: I. '
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Pitkin County Board of County Commissioners and j ::
Pitkin County Attomey �
530 East Main 5treet f
Aspen,Colorado 81611
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Park Trust Ltd.,dlb/a Aspen Valley Land Trust �•,.
P.O. Box 940 :�
. Aspen,Co[orado 816i2
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Grantee shall have thirty(30)days from the receipt of such notice,as indicated by the
registered or certified return receipt,to review the proposed activity and to notify Grantor of its
objections thereto. Such objections,if any,shall be based upon Grantee's considered opinion that
the proposed activity is inconsistent with this Conservation Easement. If at all possible, said
notice shall inform Grantor of the manner in which the proposed activity can be modified to be
' consistent with this Conservaiion Easement.
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Grantee's response to Grantors notice, and any other notice that may be required or
permitted of Grantee hereunder, shall be sent by registered or certified mail, return receipt i
requested,to Grantor at the following address,or to such other address as Grantee from time to �
time may be informed of in writing by Grantor:
Windstaz Land Conservancy
c/o Hunter Lovins
1739 Snowmass Creek Road +
Snowmass,Colorado 81654
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Copy to: �
McFlynn Pickett Doremus&Whitsitt,PC 'f
320 West Main Street �`
Aspen,Colorado 81611 �:� •.
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Should Grantee fail to post its response to Grantor's notice within tllirty(30)days of the _
�osting of said notice, the proposed activity shall automatically be deemed consistent with the
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terms of this Conservation Easement, and Grantee sl�all have no further right to object to the ti,
activity identified by such notice. '
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Grantor shall be under no liability or obligation for any failure in the giving of notice as
required above�vith regazd to any activity undertaken by Grantor necessitated by virtue of fire,
flood,act of God,or other element or cause beyond the control of Grantor.
In the event Grantor and Grantee disagree as to whether a particular use or practice is a ;.�
"Consistent Use" or a "Prohibited Use", as defined herein, or if Granror disagrees with a
determination by Grantee tliat a proposed activity is inconsistent with this Conservation Easement, _ .
either Grantor or Grantee may submit the dispute to such form of inediation, arbitration. or ,
conflict resolution as may be mutually acceptable to Grantor and Grantee. in the event of
arbitration,the parties agree that the decision of the arbitrator(s)shall be final and binding upon
the parties, and that the non-prevailing party shall bear tl�e cost of the conflict resolution �
procedure. However,each party shall pay its own attorney's Fees,if any,regardless of outcome.
9. Costs and Liabilities. Grantor retains all responsibilities and shali bear all costs and 1,
liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the
Windstar Property, including the mainienance of adequate comprehensive �eneral liability
insurance coverage, Grantor shall add Grantee as an additional insured to such insurance
_ coverage,and shall deliver proof of such coverage to Grantee at closing. Grantor shall keep the
Windstar Property free of any liens arising out of any work performed for,materials furnished
to,or obligations incurred by Grantor. •
I0. Taxes and Assessments. Grantor understands that nothin� in this Conservation �'"
Lasement relieves Grantor of any obligation or restriction imposed by law with respect to the I
Windstar Property,including the obligation to pay such real estate taxes as may be assessed from '
� time to time on the Windstar Property or on this Conservation Easement. Grantor agrees to pay �
before delinquency any and all real property taxes, fees, assessments and charges of whatever �
description assessed or levied on the Windstar Property,including any tax or assessment on the i
Conservation Easement granted by this document, and does indemnify the Grantee therefore. �
Grantor shall furnish Grantee with satisfactory evidence of payment, upon request. Should
� Grantor,Grantor's heirs,successors or assigns,faif to pay any such real property taxes,charges, '
fees or assessments on the Windstar Property, Grantee may, at its sote discretion and �vithout
obligation,pay such taxes,fees,charges or assessments in aceordance with any bill,statement or
estimate procured from the appropriate authority,without inquiry into the validity of the taxes
or the accuracy of the bill,statement or estimate,and the obligation created by such payment
shall beaz interest until paid by Grantor to Grantee ai the rate of two(2)percentage points over
the prime rate of interest from time to time chazged by Norwest Bank of Denver or the maximum '
rate allowed by law. �
10 --
Y �
400406 12/s'�/1996 11:;7p GG 10 OF 3�
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I 1. Water Rights. Grantor shall retain and reserve the right ro use water rights su�cient �
to maintain and improve dte Conservation Values of the Conservation Area, and sha[l not ";�^� "`�.
transfer, encumber, lease, seil or othenvise sepazate tvater rights sufficient to maintain and �� . '�
improve the Conservation Values of the Conservation Area from title to the Subject Tract itself, :' � �-
,
without the prior approval of Grantee,and should Grantee detertnine that any such transfer will
not substantially diminish or impair the Conservation Valves of the Conservaiion Area, or is Y`
othenvise consistent with this Conservation Easement such approvat shall not be unreasonably
withheld.
12. Public Aecess. Public access to the Conservation Area shall be allowed for hiking, � r
horseback riding and cross-country skiing along established trails or roads or in areas delineated •��'
by Grantor for winter use. at no chazge to the public in accordance with the terms of the ?` " �
Management Plan required by paragraph 3 above. In order to assure this public access, the '
Grantor,RMI and the Foundation agree by virtue of their e�ecution of this document that public
access through the Reserved Area to the Conservation Area shall be guaranteed. This public !':� •
access may be limited at certain times of year,such as calving,fawning or migration times,in ,.;
accordance with recommendations of a wildlife biologist familiaz evith the Conservation Area a1
contaii�ed within the Management Plan, and may further be limited by reasonable rules and �.
regulations designed to preserve the Conservation Values of the property. With the exception '
of the entry rights Franted to Grantee and the public in this Conservation Easement, nothing ,.�.'
_ contained in this document shall be construed as affording the public access to the Reserved Area, t�
and Grantor retains the right ro control access to the Resen•ed Area,and shall have the right to
enforce any prohibition of public access by all lawful means. �
13. Residual Estate. As expressly provided in Section 38-30.5-105 of the Colorado
Revised Statutes,all interests and rights of ownership not transfened and canveyed to Grantee
by this Conservation Easement shal!remain in Grantor,including the right to engage in all uses
� of the Windstar Property which are not inconsistent with the Conservation Easement or prohibited
by the Conservation Easement or by law.
14. Subseqaent Sale,�xchaoee.Condemnation or Involuntarv Conversion. Grantor
and Grantee agree that the granting of this Easement immediate[y vests the Grantee with a
property right, and the fair mazket value of this property right as compared to the fair mazket
value of the entire Windstar Property is impossible to calculate at present without benefit of an
appraisal of the value of the Conservation Easement relative to the value of the Windstaz Properry
as a whole. Therefore,the parties hereto agree that in the event of a res�uest to extinguish this
Conservation Easement,the initiation of an involuntary conversion or condemnation aciion, or
any other action which results in the termination of all or a portion of the Conservation Easement +
on the Subject Tract,Grantor and Grantee shall commission and jointly pay for the cost of an 1
appraisa! which shall determine the value of the Windstaz Propercy encumbered by the �,� �
Conservation Easement and the value of the Windstar Property unencumbered by the
Conservation Easement(appraised at the property's highest and best use as unencumbered). 7'he `I
difference between these two numbers shall represent the ratio of ownership interest owned in � ��
the Windstaz Property by Grantor aad Grantee. For example,should the unencumbered value of •.
�'!
iz �� ' � -
4004Q�E lc/.3N/1996 11:37A F�6 11 OF 32 ��
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the Windstar Property equal $1,000,000 and the difference between this number and the ;:�
encumbered value of the Windstar Property equal$200,000,the ratio of the ownership interest �
of Grantee in the Windstar Property would be 1/5(20%}. `
�..
Grantor and Grantee further agree that the above ratio shall remain constanY, so that �:;r
should this Conservation Easement be extinguished by a change in conditions,or for any other
reason. the Grantee shall be entitled to a portion of the proceeds from any subsequent sale,
exchange or involuntary conversion;provided,however,if Grantee's actions are the cause of the
extinguishment, the provisions of this paragraph shall not apply. The Grantee may be
compensated for the value of this property right only in the event of a change in conditions
resulting in the extinguishment of the Conservation Easement{as provided in Treas.Reg.Section �
I.11OA-14(g)(6)(i)). Grantee shall apply its shaze of the proceeds in a manner consistent with
the conservation purposes of the Conservation Easement or for the protection of a "relatively `
natural habitat of fish, wildlife, or planu or simiIar ecosystem" as that phrase is used in the -
Internal Revenue Code. [f the Conservation Easement is taken,in whole or itt part,by exercise
of the power of eminent domain,Grantee shall be entitled to compensation in accordance with
applicable law in an amount as determined by the values established by this pazagraph. ,
15. Subsequent Transfcrs. Grantor agrees to incorporate the terms of this Conservation
Easement in any deed or other legal instrument by which it divests itself of any interest in al(or
a portion of the Windstar Property,including,without limitation,a leasehold interest. Grantor
further agrees to give Grantee written notice of the transfer of any interest at least twenty(20)
days prior to the date of such transfer, including the transferee's name, address and telephone
number. The failure of Grantor to perform any act required by this paragraph shall not impair
the validity of this Conservation Easement or Iimit its e�forceability in any way.
16. Hold Harmtess. Grantor shall hold harmless, indemnify and defend Grantee, •
volunteer citizen board members, employees, agenu and the heirs, personal representatives,
• successors,and assigns of each of Yhem(collectively"Indetnnif ed Parties")from and against all
liabilities, penalties, costs, iosses, damages, expenses, causes of action, claims, demands or
judgments,including,without limitation,reasonable attorneys fees,arising from or in any way
connected with: (1)injury to or the death or any person, or physical damage to any property,
resulting from any act,omission,condition,or other matter related to or occurcing on or about
the Windstar Property,regardless of cause,unless due solely or in part to the negligence of any
of the Indemnified Parties;(2)the presence or release of hazardous or toxic substances on,under
or about the Windstaz Property,unless such release was caused by an Indemnified Party. For the
purpose of this pazagraph, hazardous or toxic substances shall mean any hazardous or toxie
substance which is regulated under any federal,state or local law.
17. Amendment. The fact that any use of the Windstaz Property that is expressly
prohibited by this Conservation Easement,or any other use as determined to be inconsistent with •
the purpose of this Easement may become greatly more economical[y valuable than consistent
uses atlowed by this Conservation Easement,or.that neighboring properties may in the future be
put entirely to uses that ace not permitted hereunder, has been considered by the Grantor in
12
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4�04Q6 1�/�Q/1996 11:37R F'G 1� OF .32
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granting this Conservation Easement. It is Grantor's beiief that any such changes tvill increase ��.' _,..
j�:�
the benefit to the public of the continuation of this Conservation Easement,and it is the intent , �,,
of both Grantor and Grantee that any such changes should not be assumed to be circumstances � ' .
.,. .
justifying the termination, extinguishment or automatic amendment of this Conservation • '�
Easement. In addition, the inability to carry on any or all of the Consistent Uses, or the � �
unprofitability of doing so, shall not impair the validity of this Conservation Easement or be � `
considered grounds for its termination,extinguishment or automatic amendment. �.:_
. _..•..
Notwithstanding the foregoing,however,Grantor and Grantee recognize that circumstances °',Y_��
may arise under which an amendment to or modification of this Conservation Easement wouid �:.`
be appropriate. Accordirtgly, Grantor and Grantee may jointly amend this Conservation `.:{� ,
Gasement,provided that no amendment shall be allowed that will affect the qualification of this
Conservation Easement under Section 38-30.5-101,et se ., Colorado Revised Statutes, nor its
qualification as a conservation easement for purposes of the Intemal Revenue Code, and any
amendment shall be consistent with the conservation purposes of this Conservation Easement,and
. shall not affect its perpetual duration. Any such amendment shall be recorded in the official �
records of Pitkin County,Colorado. Although this paragraph recognizes that an amendment to
this Conservation Easement may be appropriate in certain circumstances, the terms of diis ,.
paragraph do not create an obiigation on the part of either Grantor or Grantee to agree to an
amendment requested by the other party. �,
j�
� 18. Extineuishment. If circumstances arise in the future that render the purpose of this 'i
Easement impossible to accomp[ish, this Easement can only be tertninated or extinguished,
whether witli respect to al!or part of the Windstar Property,by judicial proceeding in a court of
competent jurisdiction.
19. Enforcement and Waiver. Enforcement of the terms and provisions of this
Consen�ation Easement shall be at the discretion of Grantee. Any forbearance on behalf of
' Grantee to exercise its rights hereunder in the event of any breach by Granior sha11 not be
deemed or construed to be a waiver of Grantee's rights hereunder in the event of any subsequent
breach. Grantor hereby waives any defense of laches,estoppel or prescription.
i
20. Enforcement of Rights.
(A) In the event of a violation by Grantor or a third patty of any term,condition,
covenant,or restriction contained in this Conservation Easement, Grantee shall give the
Grantor written notice of such violation,describing the violation and making demand that
the violation cease and be remedied. If,after ten(10) days following receipt of such ��
notice(as indicated by the registered or certified mail retum receipt),the violation has not
�
been corrected or the prohibited use terminated,and any damage to the Conservation Area ��
remedied and the Conservation Area restored,or steps taken to ensure the swift restoration
of the property;or,alternatively,,if a written explanation to Graniee of the reason why �'•+�.
the alleged violation should be permitted is not delivered to Grantee�vithin such ten(10) �;
day period,the Grantee may enjoin by temporary or permanent injunction such violation '
, �'�.i
13 i; '� i
4�L�406 ]2/.30/299E 11:37A PG 13 DF 32 `'
4
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and/or institute a suit for damages for breach of covenant,or may take such other action ��'
j^< `�>
as it deems necessary to insure compliance with the terms, conditions, covenants, and ;:_ ,,,
purposes of this Conservation Easement;provided,however,that any failure to so act by ' :
the Grantee shall not be deemed to be a waiver or a forFeiture of the right to enforce any �� � . '•.
term,condition,covenant,or purpose of this Conservation Easement in the future. Should =
the breach of this Conservation Easement be an impermissible conveyance of water rights i"
in violation of pazagraph 11 above,such conveyance shall constitute a fraudulent land _
transaction and shall be grounds for the Grantee to void the transfer or sale.
. .,:,r.
(B) Grantor fuRher intends that should any Prohibited Use be undertaken on the !� :;
Conservation Area,the Grantee shali have the right to cause the restoration of that portion '�. ,
of the Conservation Area affected by such activity to the condition that existed prior to .
the undertaking of such prohibited activity. In such case,the wst of such restoration shall �'.
be borne by Grantor,Grantor's successors or assigns. Nothing contained herein shall be �'
construed to preclude Grantor from exhausting legai remedies in determining whether the �' '
��:
proposed activity to which the Grantee has objected is consistent with this Conservation 1�
Easement. �. � �
(C) Any costs incurred by Grantee in enforcing the terms of this Conservation
Easement against Grantor, including, without limitation. costs of suit and reasonable �
attorneys' fees(even in the event that the Grantee secures redress without a comp(eted ��
_ judicial proceeding),and any costs of restoration necessitated by violation of the terms j
of this Conservation Easement,shall be repaid immediately to Grantee by Grantor. lF
Grantor prevails in any action to enforce the terms of this Conservation Easement,the
costs of suit,including,without limitation,reasonable attorneys' fees of Grantor,shall be
paid by Grantee.
(D) Nothing contained in this Conservation Easement shall be construed to entitle
� Grantee to bring any aciion against Grantor for any injury to or change in the
Conservation Area resulting from causes beyond the control of Grantor,inciuding,without �
limitation, fire, flood, storm, and eaah movement, or from any prudent or good faith
action taken by Grantor under emergency conditions to prevent, abate, or mitigate �;
significant injury to the Conservation Area and/or the Windstar Property resulting from
such causes.
(E) Notwithstanding any other provision hereof to the contrazy,upon a transfer
to a third party of Grantor's interest in the Windstar Property, Grantor's rights and
obligations under this Conservation Easement shall automatically pass to said third party, �
and Grantor shall have no further rights or responsibilities hereunder,except that liability �`
for acts or omissions occurring prior to transfer shall survive transfer. �'
21. Assienment. Grantee may, �vith Grantor's prior written consent, not to be ��;
unreasonably withheld,assign this Conservation Easement to any chazitable organization exempt
under Section�01(c)(3)of the Internal Revenue Code of 1954,as amended,which organization �`•` �
y '.
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14 i
4a1�41�6 1'2/3Q/1996 11:.;7R PG 14 oF 3z ���
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was created at least two(2)years prior to receipt by it of the Conservation Easement,provided -
_,.:
that(a)in the judgment of Grantee,the assignee organization has the ability,experience,.interest -
and resources to carry out the conservation objectives expressed in this Conservation�asement, :'?`'- '�
and(b)the assignee or�anization agrees in writing to abide by and to carry out the intentions of ' . '�
Grantor and Grantee as expressed in this Conservation Easement. >y'� ��:.;,
22. �indirte Effect: Rule Aeainst Per�etuitics: Severabilitv. This Conservation l `
Easement shall run with the title to the Windstar Property,and shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs,personal represenratives,successors ��'?
and assigns in perpetuity. If any term or provisian of this Conservat'ton Casement would ', �
othenvise violate the rule against perpetaities ar the rute restricting restraints on alienation.such �`-r
term or provision shall automatically expire and be of no further force or effect twenty(20)years k"�
Following the death of the last to die of L. Hunter Lovins, Prederick F. Peirce, and 7ames R. •� '
True. and their now living children. If any provision of this Conservation Basement or the '
application thereof to any person or circumstance is found to be invaiid,the remainder of the
provisions hereof and the application of such provision to persons or circumstances other than
those[o�vhich it is found to be invatid.shall noi be affected thereby. "''
�:
?3. Joint Obligation: Succcssors. The obligations imposed by this Conservation �
Easement upon the Grantor shall be joint and several. The covenants, terms, conditions, and .•y"
. restrictions of this Conservation Easement shal!be binding upon,and inure to the benefit of,the
pazties hereto and their respective personal representatives.heirs,successors,and assigns and shall ,�
continue as a servitude ntnning in perpetuity�vith the title to the Windstar Property. �
i
.
24. Internretation. The provisions of this Conservation Easement shali be iiberally ,
construed to effectuate their purpose of preserving and protectin�the Conservation VaIues of the
Conservation Area. No remedy or election given by any provision in this Conservation Easement
� shall be deemed exclusive unless so indicated,but it shall,wherever possible,be cumulative wiih
111 other remedies at]aw or in equity. The parties acknowledge thaY each party and its counsel
have reviewed and revised fhis Conservation Easement and that no rule of construction that
ambiguities are to be resolved a�ainst the draffing party shall be employed in the inTerpretation
of this Conservation Easement. In the event of any conflict between the provisions of this �'�
Conservation Easement attd the provisions of any use and zoning restrictions of the State of
Colorado,Pitkin County or any other govemmental etttity with jurisdiction,the more restrictive �
provisions shall apply. Tl2is Easement shall be interpreted in accardance�vith the.laws of the �
State of Colorado.
�
IN WITNESS WHEREOF, Grantor and Grantee have executed this Conservapon
Easement as of the day and year first above written.
(EXECUTION PAGES FOLLOVI�
�
40@406 1�/3�/1996 11:37R �G i5 OF s'2
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ATTEST: GRANTEE:
BOARD OF COUNTY COMMISSIONERS �`
OF PITKIN COUNTY,COLORADO :�'=
/ ''.;'
�' 'r,�� By: ,� �—
Jea ette Jones �� � James R.Trug,Chairman
Deputy Clerk and'Recorder DATE: %—/G��'(. ;,
r :
APPROVED AS TO FORM: MANAGER APPROVAL: '
_��d����--�\�_-- �h(/V
S Konch
County Attorney� Coun Manager
�I�I�RdU�b I,� �raoc. o`
APPROVED AS TO CONTENT: � j�'
: ' �� �-a�-s.�
�
Chairperson
Open Space and Trails Board of Trusfees
, �
RECOMMENDED FOR APPROVAL:
,y�S����ll�
, ne Ellen Hamilton, Chief Executive O�cer
pen Space and Trails
GRANTEE:
PARK TRUST,LTD.,D/B/A ASPEN VALLEY LAND TRUST
gY; � l,,��(c�� ` .
- GayR2L rs' �� i=f-(Gr��� (/;c¢.-F�r2FS:cte,��'
16 �
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GRANTOR: "
WINDSTAR LAND CONSERVANCY � `
i.
1 � i,�
- By. C.� .�`�^� '.
STATE OF�00 ) t'`�•
)ss. `�
COUNTY OF��N ) t-�r .:
� :
The foregoing instrument was acknowledged before me this 7�day of �
�urc�s'T- , 19�by�9�' .C3 . .C�u/ �S,the ��.eFG�-»iP of the �
Windstar Land Conservancy.
� �::,;,��"'••.
-;_;=:;`� Witil�ss:�ny hand and official se 1.
•:,:r. �:'� Pvfy cpininission expires: �� -
.#_y. `,J'.r. `J .�_
rh= P�0�'� ' �`f:., otary blic �;,•
,t' sr���rpv`�`.����
' R�CKY MOUNTAIN INSTITUTE �
By: / ✓ .
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STATE OF C ORFJDO) '
)ss.
�'.
COUNTY OF pi�j,�� )
The foregoing instrument was acknowledged before me this Z�day of
Fl(�GUS7— , 19�byl,�lu,vrxe,Cov/i►!�as�s• of the Rocky Mountain Insdtute.
,. A.vo�xECCi n v� OiR.
.�, ^' it�ies`s my hand and official se .
,:;,``��,P �M�-+a3mmission expires: � �
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AlX'i-06-19% 17i� ROCKY M1N. INSTITUTE 970 927 4178 P.li :�'�`j'.'"'�"
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GRANTOR:
WINDSTAR LAND CONSERVANCY �;t•�� ;,
BY: C���Gr�._.�����.ce.._— rI'� . 1'�
. ���
STATE OF NLU)�X.tCA)
".f�.;,-.
COUNTY oF �'a �e��. • .
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Th F foregoing instrument was acknowledged before m this 13� da• of ;�:`'. .
Y
,�}i 19�{ by '�3�.u2 ��,W1Q2,o ,the o�iwf' ofthe ?.
Wiq�v ;Lan�'�onservancy. �
:c�V'�VfiS,n�ss'mfy fiand and offic' scal. r!;;,
` , ,', .My.cbtfuiiissifln expires• o✓vu� l°)� I 9 9 7 '
:�+ ''`
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'c;:, ' - �'� r�c Notary Public � .
. , `�;;•,': = .
a ,,.�•`��.;' �.
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- ROCKY MOUN1'AIN INSTI1'UTE .�
i
By:�
- STATE OF )
)ss.
COUNTY OE )
,�
The foregoing instrument was acknowledged before me this day of
, , 19 by ,as oF the Rocky Mountain Institute, i
Witness my hand and afficial seal.
My commission expires:
Notary Public
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THE WINDSTAR FOUNDATION �'`
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By:__7�/��!����--�` y`''��� �-'.
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STATE OF N� �9 !"
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)ss. . !;
COUNTY OF San+drp� 1, `�, r.~;
��1�#'oregoing instrument was acknowledged before me this �3* day of 'k ;
199(o by C��pru 1�ana+�e,S_�of The Windstsr Foundallon. ;� , .
g�,...'.:..�'F,p' 7�' .
���'� �tness.��hand and offic'al seal.
��.�Qv1y�pQynis?�ssion expires: 1 �(9�-I �'`�.
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'`�;�,��:'�'����G � _ Notary Public ,.�`
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EXHIBIT A • . '`:
�y. ,,
�'`
A parcel of land Being part of Sections 2, 3, 10, 11, 14 and 15,
Tos�mship 9 South, Range 66 West of the 6th Principal Meridian, said ,;''.-..
parcel is more fully described as follows:
,,;,�..
Beginning at a point, being the Southwesterly cozner of that parcel t�.'
deacribed in Book 200 at Page 595 ae recorded in the Office of the ;�, � -
Pitkin County Clerk and Recorder, whence the South 1/4 corner of b-�
Section 34, Township 8 South, Range 86 West of the 6th Principal fr
Meridian bears N 28°46�42" W, 3775.26 feet; ��:•
thence S 89°59'00" E, 1725.99 feet;
thence S 31°47'41" E, 2452.35 feet;
thence S 58°04'D1" E, 331.24 Peet; i`
Chence S 06°56�39" w, 234.30 feet;
thence S 2�°29'29" W, 411.0o feet; �
thence S 20°04'S8" W, 403.10 feet; �
thence S O1°21'S0" W, 629.79 feet; �.
thence S 06'2'7'21" E, 773.23 feet; !�
thence S 18°36'22" E, 519.48 feet;
thence 5 OS°ol'24" E, 2174.86 feet; 'i
- thence S 99°47�04" W, 1189.66 feet; 3
thence S 40°l0'47" W, 781.3o feet to the South line of the NW1/4 of
the NWl/4 of said SeCtion 14;
thence S 89°30�00° W, 3939.12 feet; �'
thenee N O1°44'10" W, 4332.10 feet;
thence N 15°03'09" E, 1226.67 feet; .
thence N 37°25'09" E, 1950.45 feet;
thence N 30°2B'45° E, 1140.39 feet;
thence N 08°26'28" W, 800.21 feet to the point of beginning.
EXCEPT
:
those portione lying and bein within the NW1/4, S1/2NE1/9, of Section
15 and the S1/2NW1/4 of Section 14, Township 9 South, Range 86 West
of the 6th Pz'incipal Meridian.
PARCEL H:
a
An undivided interest in and to those portions of Lots 9 and 10, '1
Section 2, and Lots 1, 6, 7, 8, 13 and 15 in Section 3, Townehip 9 �, �
south, Range 86 West of [he 6th Principal Meridian described as ' ''
follows:
Beginning at a point whence the South one-quarter corner of Section � •
34, Township e South, Range 86 West of the 6th Principal Meridian � �
bears North 66°52�30° West 1,331.37 feet; , �. '
thence S 53°17' West, 420.93 £eet;
thence S 31°44� East, 146.55 feet; `
thence S 20°09' East, 213.00 feet; ,'� i� _
thence S 23°40� East, 83.15 feet; '• �"
thence S 42°08' East, 281.40 feet; _•}"
_�
thence S 2e°11' East, 77.14 feet; „•.•.,`
4a04a6 12/31�/1996 11:37A F'G 20 OF 32
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SXHIBIT A (Continued) r._.. ;,.
� ,,:
• . thence S 6°23� West, 171.65 feet;
thence S 40°20' West, 92.15 feet; - `•�
thence S 81°21' Weet, ;241.64 feet; • .'%
thence N B4°28' West, 86.93 feet; �
. ..�.
thence S 76°U7� West, 102.47 feet; ' �
thence S 57°59' Weet, 49.59 feet; ':
thence S 41°35' West, 184.40 feet;
thence S 47°14' West, 217.03 feet;
thence S 55°31' East, 327_07 feet; '�?�.'�
thence N 57°04� East, 1�2.61 feet; �"
;::.•.. `
thence S 69°37' East, 168.85 feet; "�
thence S 80°04' East, 136.10 feet; ��� .
thence S 83°10' £ast, 251.73 feet; �> - '
thence S 38°49' Bast, 556.�9 feet; ,, .
thence S 10°O1' East, 585.50 feet; ;
thence S 89°S9' East, 1,725,99 feet; ? '
thence N 17°14' West, 848.11 feet; '
thence N 46°33' West, 65.00 feet; ���
, thence N 57°00' West, 110.67 feet; j.
thence N 73°51` West, 116.63 feet; i, '
thence N 39°08' West, 133.20 feet; �.�.��
thence N 18°23` Weat, 90.�� feet;
thence N 43°27' West, 181.40 feet; ��';
thence N 19°27' West, 197.0o feet;
thence N 31°33' East, 249.99 feet;
thence N 55°44' West, 1,989.01 feet to the poinC of beginning_ �
�
4N0406 12/3011996 11:.37A F'G 21 OF 3c
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EXHIBIT "B" -
ASPEN SURVEY ENGINEERS,INC. -'�^� �''
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210 SOUTH GALENA STREET,SUfTE 22 '
ASPEN,COLORADO 8161 I >'��"�,:+,�,
, PHONFJFAX 970-925-3816 �.
!-�
WINDSTAR LAND CONSERVANCY
BUILDING ENVELOPE °'` `
A PARCEL OF LAND SITUATED IN SECTION 3,TOWNSHIP 9 SOUTH,RANGE 68 WEST OF THE , � r .
6'h PRINCIPAL MERIDIAN,PITKIN COUNTY COLORADO DESCRIBED AS FOLLOWS: .� ��
5k, . .
BEGINNING A POINT WHENCE THE SOUTH QUARTER CORNER OF SECTION 34,TOWNSHIP �Y'' •
8 SOUTH,RANGE 86 WEST OF THE 6'"PRINCIPAL MERIDIAN BEARS N 55°44'00"W 73338
FEET AND N G6°52'30"W 133137 FEET(A 1926 O.L.O.BRASS CAP IN PLACE); :�`�
THENCE S 48°36'18"W 212.59 FEET; ��;�'•!.
THENCE S 25°14'13"W 570.44 FEET; ''`�
THENCE S 41°45'S9"E 268.63 FEET; ?
THENCE S 44°46'S0"E 787.87 FEET;
THENCES29°13'26"E 241.01 FEET; �-.p
THENCE N 72°57'40"E 304.03 FEET;
THENCE N 60°56'17"E 441.G7 FEET;
THENCE N 18°23'00"W 90.00 FEET; ,�
THENCE N 43°27'00"W 181.40 FEET;
THENCE N 19°27'00"W 197.00 FEET; !
THENCE N 31°33"00"E 249.99 FEET:
THENCE N SS°44'00"W 1255.63 FEET TO THE PO[N'f'OF BEGINN[NG CONTAINING 30.754
ACRES MORE OR(.ESS.
M
BEARfNGS BASED ON RE-BARS WITH PLASTIC CAPS STAMPED L.S.15710,SET FOR THE
OUTSIDE BOUNDARY OF THE LAZY-O-RANCH:N 83°10'00"W 251.73 FEET.
r.
PREPARED BY:JOHN HOWORTH,PLS 25947 • .�
.. � .
12/30/1996 11:.'�7R F'G �3 OF 32
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40040E 12/30/1996 11:37p PG �4 OF 32 ,�
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�g EXHIRIT C t�`•'-= •�•
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('`.*•`'?
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DAY CARE CENTER means a facility thaz provides regular supervision and care for periods of less - -
. � "�.::
than twenty-four(24)hours per day to six(6)or more children under the age of sixtcen(16)yeazs who are ,
not related to the owner or operator thereof,which is licensed,as required,by the Colorado Department of . •�
Social Services. ,1:
DAY CARE HOME means a facility which provides regular supervision and care of fewer than six .• ''.�•
(6)children per day,and shatl be allowed as an accessory use,subject to the following:
a. If the family day caze home is developed in conjunction with a residential use,it shall meet the
requirements of a home occupation.
b. If the family day care home is developed in conjonction with an instiNtion or business,it shali
�s:�.. :
be limited to use by the children of employees or guests of that institutlon or business and sha11 provide one
off-sveet padcing space. �
DEBRIS-FAN FLOODPLAIN means a floodplain which is iceazed az the mouth of a mountain valley '
tributazy sUeam as such stream en[ers the valiey flooc
DEMOLITION means the act of demolishing a swcture.
DEPISITY means a measurement of land development intensity derived finm a ratio of land area in
relation to dwelling units or building floor area.Density is measured by dividing rotai land azea by the number �;;.
of dwelling units or building floor area to azrive az a dwelling per land area ratio or square foot per land area �''
razio.
�
DEVELOPER means any person or endty, including a govemmental agency, undertaking any •
. i
development as detailed in this chapter.
•�- DEVELOPMENT means the cazrying out of any buiiding activity,the making of any material change
in the use or appeazance of any strucnue or land,or fhe subdividing of land inro two CL)or more pazcels. � �-
a. For the pu�poses of these�gulations,the following activities or uses shall be taken to involve
. "developmenY':
1) A reconstcuction or altemtion of the size or building footprint of a structute. ��.
2) A change in the intensity of use of land,such as the establishment of,or an increase or decrease
in,the number of dwelling units or floor area.
3) Commencement of driiling,mining,or excavation on a parcel of land.
(:
4) Total demoliuon or partial demolition of a structure.
V
5) Clearing of land,including clearing or removal of vegetation, and including any significant
disturba�e of vegetation or subsuate(soil)manipularion. � •
t
6) Deposit of refuse,solid or liquid waste,or fill on a parcel of land. �
�,
�
e
v �
aA» 394 ' . _-
I
40a4QE lc/'0/1996 11:�7p F'G C.J OF 3^c
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b. Development includes aTl other activity costomarily associated with it When appmpriaze to the ' `- .
context,"developmenY'refers to the act of developing or to the result of ihe act of development Tteference ;� .�,
to any specific opeiation is not intended to mean that the operation or acavity,when part of other operations ti,
or acriviaes,is not development Refer�nce co particular operations is not intendeA to limit the genetatity of ,:�, .
�.
ihis defini6on. ' •
DEVELOPMENT APPLICATION means any written request for approval and/or issuance of a
development order.
S•.�:.
DEVELOPMENT PERMIT includes any buiiding permi4 Speciai Review approvai,subdivision � .
approvai,approval of growth management allotrnent,approval of a cectificate of wning comptiance,or any � -` '
other officiai acdon by any official, council,commission, or board of the County having the effect of
peimitting development ,
DIAMETER BREAST HEIGHT(D.B.A.)means the diameter in inches of a tree measured at four
and one-half feet above the existing gtade. ,.
DIRECTOR,PLA,NNWG means the person primazily responsible for pianning and wning adminis�a-
tion for the county,and includes peisons designated by the Director.
i•
� DOMES7ZC W ATER AND SER'AGE TREATMENT SYSTEM means a wastewater treatment plan4
water tieeaanent plant,or water suppiy system as defined in Section 25-9-102.C.RS.,I973,a�any system
- of pipes,sauctures,and facilides ttuaugh which water supply is obtained,treated,and sold or distributed for
human consumption or household use.
D�RNIITORY IIN1T means a siructure or portion ihereof under single management thaz provides group
s►eeping accommodations for guests or residents in one(1)or more rooms for compensauon.Occupancy of
a dornritoty unit shall be limiteci to no more Uian eight(8)persons.Each unit shal!provide a minimum of �,_
one hundred fifty(150)square feet per person of net living area,including sleeping.bathroom,cooldng and �
� lounge used in common.Standazds for use and design of such faciliries shall be established by the County's
housing designee. �
DRAINAGE AND EROSION CON1'ROL STRUCTURES means ali facilities necessary to control
the direction,depth,velocity and volume of water flow within a development,and to mitigate erosion and
related water quality impacts resulting from development
DRAINAGE PROBI.EM(s)means any unsatisfactory condition(s)that may affect or result from 1he
natural withdrswal of excess surface wazer or groundwater from the uact or from the vicinity of the tract
Such conditions include,but are not limited to,low-lying azeas not having adequate drainaoe ouUets>shaliow
groundwater tables,or storm water runoff ori�inating from developed or undeveloped areas on or adjacent
w the uact�
DRY W ASH CHANNEL and DRY W ASH FI.00DPLAIN meazu a small watetshed with a very high .
percentage of runoff after toaential rainfall.
40Q�406 12/`',s/1996 11:37A F'G ^c6 OF .',^c '
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SM'E COV ERAGE means the percentage of a site ooveted by buildings,measureA az tYu exterior wa11s "
or suppordng members of a building at ground level. Roof or bafcony ovefiangs,cantilevered building �:
elements and similarfeatu�s shal!be excluded fmm maximtun allowable siu covenge calculations,provided , '`�
that the area of such overhangs is less than or equa!to fifreen percent(15�Yo)of the maximum allowabie site -
., •J.
covetage.
SITE SPECIFIC DEVELOPMENT PLAN means Detailed Submission approval described in Section
420 of the Code.Whete Detailed Submission approval is teot reqaired,the 5ite 5pecific Development Plan
shall consist of the Ftnal Plaz approval identified in Section 4-20 of the Code. Where�ither Detailed
5ubmission or F'uial Plat approval aze required for a particuiaz appiicarion,the final appmval granted by
Resoludon of the Boazd of Counry Commissioners,the Plaiu�ing and Zoning Commission or ffie wrttten r
approva!of the Planning Office,whichever agency is authorized to grant final approval of the project,shali .
be deemed W be ihe Site SpeciSc Development Pian. A vaziance shatt nat cronstitute a Site 5pecific '
Development Plan.A zoning designation(e.g.,R-30,R-15,etc.)not part of a Site 5pecific Development Ptan '
shall not consdtute a Site Specific Development Plan and shall not iESUIt in the cceafion of a vested prope�ty
ri8ht ,
SKI AREA means all ski slopes and vails and other places under the wntml of a ski area operator and
admuustered as a single enterprise within ihe State of Colorado.
SLOPE means the gradient of the ground surface which is definable by degree or percent.
• SOIL means the relatively loose,incoherent eartli material of whatever origin that overlies bedrock.
STREAM see CREEK. .
S1TtEET means a public way other than an alley, which affords rhe principal means of access to
abutting property,including privaxe streets. .-
� STREET,ARTERIAL means a street which has the primary funcfion of carrying through traffic,but
which also provides access to abuaing property.
STREET,COLLECTOR means a st�eet which has the primary function of pmviding for the disuibution
of trafFc within neighbor-hoods,and which carries throuoh vaffic and provides access to abutting propemy.
STREET,LOCAL means a street which has the primary function of providing access ro abuttin8
property,and which does not normally carry through traffic.
� STRUCTURE means anything constiucted,installed,or pottable,which requues locazion on rhe ground.
It includes yuns and tepees and movable buildings which can be used for housing,business,commercial,
agriculacral,or office putposes,either temporarily or permanenUy."Structure"also includes roads,walkways,
paths,fences,swimming pools,tennis courts,signs,sheds,and other accessory consnvcdon."SUucmres"do
not include fences or walls used as fences less than six feet(6�in heigh�poles,lines,cables,or oiher •
transmission or distribution faciiides of public udlides;bus shelteis less than 200 squue feet in size.
SUBDIVIDER or DEVELOPER means the petsoa including the owner,oragent forthe owner,dividing
or proposing to divide land so as to constiwte a subdivision to be shown on a reoacded plaz.
4I3 taAS> �
4QQi406 12/30/i996 11:37R RG c^7 OF 3� '
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ADDENDUM TO ti•
DEED OF CONSERVATION EASEMENT � -
: ..�.
IVOTICE:THIS PROPERTY HAS BEEN ACQUIRED IN PART WITH A GRANT FROM THE
STATE BOARD OF THE GREAT OUTDOORS COLOAADO TRUST FUND.THIS DEED
CONTAINS RESTRICTIONS ON THE USE AND DEVEL4PMENT OF THE PROPERTY
WHICH ARE 1NTENDED TO PROTECT ITS OPEN SPACE VALUES. THE STATE BOARD
OF THE GREAT OUTDOORS COLORADO TRUST FUNA FIAS FOUND TIiAT THE ,r•'
ADOPTION OF TFIESE DEED RESTRICTIONS IS IN THE PUBLIC INTEREST. , .
THIS ADDENDUM to DE£D OF CONSERVATION EASEMENT is made this�`r"�ay of •
December,1996,between Windstar Land Conservancy("Grantor"),and the Aspen Valley land Trust �
("AVLT')and the Board of County Commissioners of Pitkin County,Colorado,a body corporate and
politic(cotlectively,the"Grantee"),Rocky Mountain[nstitute("RMI'�,and The Windstar Foundation '
(the"Foundation").
RECtTALS:
A. Grantor is the record owner of that certain reai property in Pitkin County,Colorado,
consisting of approximately 957 acres,more particufarly described in E�chibit A attached hereto and
. incorporated by this reference,and which is referred to as the"Windstar Property").
B. The parties have entered iato a Deed of Conservation Easement dated December�,
1996,concerning the Windstar Property(the"Deed of Conservation EasemenY'),which is attached to
this Addendum(the"Addendum"j. All references to Sections are to tl�e section numbers in the onginal
Deed of Conservation Easement.
t_
C. As part of the origina(consideration for the execution of the Deed of Conservation �
- Easement the parties have agreed to enter into this Addendum. The tcrms oFthis Addendum are intended
to be read in conjunction with the terms of the Deed of Conservation Easement.
TVOW,THEREFORE,in consideration of the above and the mutual covenants,terms,conditior� ,
and restriccions contained herein,the parties hereby enter into this Addendum to Conservation Easement.
1. Section 8-Grantee Apuroval of Unlisted but Consistent Uses and Practices:Noticc.
a) The following is added to the first paragraph of Section 8:
"Grantor shall also give�vritten notice of intention to commence or undertake such
activity to the Executive Director of the State Board of the Great Outdoors Colorado
Trust Fund(hereinaher tlie"Board'�,and shall obtain the written approval of the Board
that such proposed use or activity is consistent with the Conservation Values of this .
Deed of Conservation Easement. In the event the Board Joes not object to such activiry
with thirty(30)days of receiving�vritten notice of the proposed activity,then the activity
may be commenced or undertaken without the written consent of the Board."
b) The following paragraph is added to the end of Section 8: ..
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"Any notice,demand,request,consent,approval,or communication that any party �.;
desires or is required to give to the Board shall be in writing and either served '
personally or sent by first class mail,postage prepaid,addressed as follows: �. ?,
To the Board:
Executive Director
State$oard of[he Great Outdoors Colorado Trust Fund
Suite 900
303 East 17th Avenue r
Denver,CO 80203
or to such other address as the Board from time to time shall designate by writte�notice - '
to the other parties at the addresses shown in the Deed of Conservatian Easement" •
2. Section 14-Subseqnent Sale.Exchanee,Condemnation or Involuntarv Conversion.
Section 14 is amertded by the addition of the following paragraph:
"W ithout regard to�vhether the Grantee's actions are the cause of the extinguishment or
tertnination of this Deed of Conservation Easement,in whole or in part,in the event of
condemnation or termination,the Board shall be entitled to receive thai portion of the net
proceeds of condemnation or sale of the Property,�vhich is equal to a fraction,the numerator of
which is the amount of the grant from the Board which was used to acquire the Property and the
- denominator of which is the acquisition price of the Property."
3. Section 17-Amendment.The following sentences area added to the second paragraph of
Section 17:
"The prior written approval of the Board shall also be required for an Amendment to this Deed
of Conservation Easement. Any amendment must also be signed by the Board,and recorded in
the records of the Clerk and Recorder of Pitkin Counry."
4, Section 18-Exrineuishment.The following sentences are added to Section 18:
"Each partv shall promptly notify the other when it first{eams of such circamstances,and shall,
in addition,notify the Board of such circumstances. The amount of the proceeds to which
Grantee shall be entitled,after the satisfaction of prior claims,from any sale,exchange,or
involuntary conversion of all or any portion of the Properry subsequent to such termination or
extinguishment,shalt be determined,urtless othenvise provided by Colorado law at the time,in
accordancc�vith Section 14 above."
5. Section 20-Enforcement of Riehts. Paragraph(A)is amended by the addition ofthe following
sentences:
"If Grantee finds what it be(ieves is a violation,Grantee shal!also immediately notify the Board
in writing of the nature of the atleged violation. Grantee shall theresfter keep the Board
informed of its efforts to enforce the terms ofthis Deed ofConservation Easement."
6. Section 21-AssiQnmeat.This section is amended by the addition of the following two
sentences:
"Any assignee oFthe Grantee's interest also shali be approved in advance in writing by the -
C:\wordata�goco\windztarVeddendum2 2 �
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Board. The Board shall have the right to require Grantee to assign its rights and obligations ti,
under this Easement to a different organization if Grantee ceases to exist or for any reason fails •
or refuses to enforce the terms and provisions of this Easement." �,.�„
7. The following new section is added following Section 24-Interp_retation:
"25.Termination of the Board. In the event that Article XXVI[of the Colorado Constitution,
which established the State Board of the Great Outdoor Colorado Trust Fuad,is amended or ,
repealed to terminate the Board or merge the Board inro another entiry,the rights and obliga- ::;...
tions of the Board hereunder shall be assigned to and assumed by such ather entiry as provided
by law,but in the absence of such direction,by the Colorado Department of Natural Resources
or its successor." '
8. Eacept as amended by this Addendum,the Deed of Conservation Easement shall remain in full
force and effect. In the event of conflict between the terms of the Deed of Conservation
Easement and this Addendum,the terms of this Addendum shaq control.
TO HAVE AND TO HOLD unto Grantee,its successors,and assigns forever.
IN W17NESS WHEREOF the parties have executed tl�is Addendum to Deed of Conservation �•
Easement on the day and year first above�vritten. '
GRANTOR:
WINDSTAR LAND CONSERVANCY
By: Cf�'�°s►L G�'f�LLFS �C.��
}� ,
STATE OF�g�g�g f�~
N�w m��ic° jss.
� COUNTY OF Pf�ifR�h- )
sAN rA F�
The foregoing insVVmegt was acknowledged by fore me this r�7�day of �FG�ii�4��..
199�by �_N�t,�,� C{{AQ!�'S as �f:�S�1��_of the Windstar Land
Conservancy.
���� m haod and officia!seal.
, { �; Y
;^.p,�,\Il R..�.^�:''•. c
, .•'My eomm�stion expires: �CA.�uca�4.�{ f� (`J �7
{SEAL}� ' �... �,�j _ �
l/� �� �T�,
� `'�_,- Notary Public
'�^tJ£Yl N'�.:�r . .
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ROCKY MO TA INSTI TE ti,
By: � :'•,.
STATE OF COLORADO )
)ss.
COUNTY OF PITKIN ) `.
('`•-
The oregoin�m�st ment was acknowledg �efore�ne th' �day of � ���, "r��
199�,by ��}ifJl,l« U 5 as �k�(p��� of the Rocky Mountain -
Institute. .
WITNESS my hand and o�cial I. '
My commission expires: � �(.•4='-..����`�
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(SEAL) �; �'IFrCFr1Td �
Notary Public � p� r-�d� '�. '
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THE WD,YDSTAR F ATIOPi
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By /L LG
STATE OF�A )
c-u�mEkrco )ss.
COUNTYOF��FC- ) .�
The foj��oing inswment was acknowledged efore m this��ay of ¢�1.',-Z�M��'�,
199�Q,by (�tfL7'L�fL ��G� as �l4'!� of The Windstar Foundation.
>y�/;;�V�'1'�V�i6S my hand and official seal.
�O�N • .��.;•'' .
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� '•• Notary Public
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GRANTEE: . ��.:'•�
BOARD OF COUNTY COMM[SSIONERS
OF P[TKIN COUNTY,COLORADO �
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6
By: :�»..�- ��— ° - a
James R.True,Chairman m
ate: /.�—/!n—7� �
ATTE •
,��� ��� ,
JeanetG ones
Deputy Clerk and Recorder '
APPROVED AS TO FORM: � C
w '
5
County Attomey �
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MANAGER APPROVAL: '
- � w
Suz e Konc n D �
Cou Manager n
�
APPR V AS TS�J f�i� f�j r�''iy
����-�'Y!/ �`,7 v""" o I.
� Chairperson '� l
Open Space and Traiis Board of Trustees u �
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, R COMMENDED FOR APPROVAL:
J ne Ellen Hamilton.Chief Executive Officer '
pen Space and Trails '
GRANTEE:
PARK T UST,LTD.,D! /A SPEN VALLEY LAND TRUST
By: ' ` �
Darcey Brown, sident
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