HomeMy WebLinkAboutbocc.con.216.2013 RECEPTION#: 601970, 07130/2013 at Eagle County, CO 201301854
11:23:37 AM,
` t oF s, R $0.00 Doc Code RESTRICTION Teak J Simonton 01/29/2013
Janice K.Vos Caudill, Pitkin County, CO REC:6$0.00 09:18:29 AM
DOC: $0.00
RESTRICTIVE DEVELOPMENT COVENANT
TH1S RESTRICTIVE DEVE OPMENT COVENANT ("Restrictive CovenanP') is
made and entered this �"day of�i,�-� 2013, by % AS Ranch Holdings, LLC, a
Colorado limited liability company ("%2 AS Ranch), for the benefit of the Board of County
Commissioners of Pitkin County, Colorado ("County").
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WITNESSETH
WHEREAS, 1/2 AS Ranch has sold and conveyed to the County the lands legally ,
described as Parcel I, accordin�to the Subdivision Exemption Plat, Red Ridge Subdivision
Exemption, recorded,��,u„79, as'Reception No.api3Ui�+1q , Eagle County, Colorado
(the "Open Space Parcel' ,
WHEREAS, 1/2 AS Ranch has also sold and conveyed to Pitkin County twenty four
thousand and five hundred (24,500) shares of stock in the Home Supply Ditch Company (the
"Sold Ditch Company Shares") and has retained ownership of three thousand, five hundred
(3,500) shares of stock in the Home Supply Ditch Company (the Retained Ditch Company
Shares");
WHEREAS, in connection with 1/2 AS Ranch's sale and conveyance ofthe Open Space
Parcel and the Ditch Company Shares to the County, 1/2 AS Ranch has retained ownership of
lands adjacent to the Open Space Parcel and legally described as Parcel 2, according to the
Subdivision Exemption Plat, Red Ridge Subdivision Exemption, recordec�aa�y�,as�
Reception No.�i3QlFy , Eagle County, Colorado (the "Retained ParceP'); and'
WHEREAS, in connection with 1/2 AS Ranch's continuing ownership of the Retained
Parcel and the Retained Ditch Company Shares, and as provided for herein, the County and 1/2
AS Ranch desire to place certain development restrictions on the Retained Parcel and restrictions '
on the use and transfer of the Retained Ditch Company Shares as more particularly set forth
herein.
NOW, THEREFORE, in consideration of the covenants, conditions and terms hereof, in
addition to other valuable consideration, the receipt and sufficiency oY which are hereby
acknowledged, the parties agree as follows:
1. Restrictive Covenant Pertaining to Residential Improvements on the Retained'
Parcel. The Retained Parcel is hereby restricted to not more than one "Dwelling Unit" as the
term "Dwelling UniP' is defined under the Gagle County Land Use Regulations from time to
time. Any new Dwelling Unit which is constructed on the Retained Parcel afrer the date of this
Restrictive Covenant shall have a maximum floor area of 3,600 square feet of"Floor Area' as
"Floor Area" is defined under the Eagle County Land Use Regulations from time to time. The
foregoing restriction shall not apply to any re-development of the existing two story, three
bedroom, three bathroom house located on the Retained Parcel, provided that such re-
development does not alter the location of any existing perimeter walls, floors, or roof of the
existing residential structure.
APPROVED BY
ORDINANCE
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2. Restrictions on Lands Lying North of Pitkin County Access Easement. 1/2 AS
Ranch hereby covenants and agrees for the benefit of the County that the portion of the Retained
Parcel lying north of the "Pitkin County Access EasemenY' described in Section 3 of that certain
"Access, Utility , and [rrigation Structure Easements Agreement" of even date herewith, and also
entered into between 1/2 AS Ranch and the County and recorded in the real estate records of
Eagle County, Colorado shall at all times remain free of junk, waste, debris, stored materials or
other unsightly materials, that such area shall remain irrigated and shall not be dried up (subject
to available water), and shall not be used for purposes of the commercial cultivation of crops in
connection with the Retained Parcel.
3. Restrictions on Retained Ditch Company Shares. 1/2 AS Ranch hereby
covenants and agrees as follows for the benefit of the County with respect to the Retained Ditch
Company Shares:
a. Pitkin County's Future Construction of Separate Ditch headgate(s) and Diversion
Structure(s). As of the date of this Agreement, U2 AS Ranch diverts the water represented by
the Retained Ditch Company Shares and the County diverts the water represented by the Sold
Ditch Company Shares from the Home Supply Ditch from a single ditch headgate and diversion
structure located on the Open Space Parce(. The parties agree that from and after the date of this
Restrictive Covenant, and subject to the requirements and restrictions of the Home Supply Ditch
Company from time to time, the County, at its sole cost and expense, may at any time provide
for the construction of one or more additional ditch headgate(s) and diversion structure(s) in
order to provide for the separate points of diversion of the water represented by the Sold Ditch
Company Shares and/or the Retained Ditch Company Shares from the Home Supply Ditch from
separate ditch headgate(s) and diversion structure(s); provided however, that at all times, the
construction, operation, use, maintenance, repair and replacement of such separate ditch .
headgate(s) and diversion structure(s) shall not detrimentally affect I/2 AS Land's diversion of
water from the Home Supply Ditch.
b. Restrictions on Transfer of Retained Ditch Company Shares. At no time shall 1/2
AS Land sell, transfer, assign, pledge, or lease the Retained Ditch Company Shares to a party
other than the County.
c. Restrictions on Use of Retained Ditch Company Shares. At all times, 1/2 AS Land
shall either: (i) divert from the Home Supply Ditch all of the water represented by the Retained
Ditch Company Shares; or (ii) if 1/2 AS Land elects not to divert all such water, then 1/2 AS
Land shall permit the County to diveR any such un-diverled water for the County's beneficial of
use of such un-diverted water for the County's use in connection with the Open Space Parcel. In
the event that 1/2 AS Land permits the County to divert such un-diverted water for the County's
beneficial of use of such un-diverted water for the County's use as provided for in the preceding �
Section 3.c(ii), 1/2 AS Land may at any time thereafter resume diversion of such previously un-
diverted water for beneficial use in connection with the Retained Parcel, provided that it provides
the County with reasonable advance notice thereof.
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In connection with 1/2 AS Land's utilization of the water represented by the Retained
Ditch Company Shares, 1/2 AS Land shall not materially change any existing beneficial use oF
such water which will result in a reduction of the amount of retum flow of tail water from the
Seller's Retained Parcel to the Open Space Parcel, and I/2 AS Land shall at all times permit all
such return flow of tail water to flow to the Open Space Parcel.
4. Covenant Running with the Land: Binding Effect. The provisions of this
Restrictive Covenant shall constitute a covenant that runs with the title to the Retained Parcel as
a burden thereon for the benefit of the County, its successors and assigns and shall be deemed an
appurtenance to the title to such land. -
5. Enforcement. This Restrictive Covenant and its terms and representations shall
be fizlly enforceable by the County, its successors, assigns and agents in any action at law or
equity or both, to secure compliance, including but not limited to, seeking injunctive relief and/or
specific performance requiring %z AS Ranch, its successors or assigns to cease and desist all
activity in violation of the terms of this Restrictive Covenant and to return the Retained Parcel to
its condition prior to any violation.
6. Costs and liabilities. Y2 AS Ranch retains all responsibilities and shall bear all
costs and liabilities of any kind related to ownership, operation, upkeep, taxes and maintenance
of the Retained Parcel, including but not limited to, costs associated with compliance with this
Restrictive Covenant. The County's acceptance of this Restrictive Covenant shall in no way be
construed as an assumption of any duties or liabiiities associated with the Retained Parcel and
1/2 AS Ranch acknowledges that by this Restrictive Covenant, 1/2 AS Ranch continues to retain
responsibility for any and all duties and liabilities associated with the Retained Parcel.
7. Subordination. At the time of the conveyance of this Restrictive Covenant, I/2
AS Ranch represents that the Retained Parcel is not subject to any mortgage, deed of trust, or
judgment lien, or any other instrument that might result in a foreclosure action that could affect
the enforceability of this Restrictive Covenant.
8. Modification. The terms of this Restrictive Covenant can only be modified by an
amended covenant executed by both 1/2 AS Ranch and the County and recorded in the records oY
the Clerk and Recorder for Pitkin County, Colorado.
9. Venue and jurisdiction. 1/2 AS Ranch and the County consent to venue and
jurisdiction in the District Court for Pitkin County, Colorado for all matters concerning the
interpretation and enforcement of this Restrictive Covenant.
10. Attorneys fees and costs. In the event of any action or suit between the parties
hereto or their successors and assigns to enforce any of the agreements, covenants or restrictions
contained herein, the substantially prevailing party in any such action or suit, whether by final
judgment or out of court settlement, shall recover from the other party all costs and expenses of
such action or suit including reasonable attorneys fees.
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11. Section headiogs. Paragraph or section headings within this Restrictive
Covenant are inserted solely for convenience of reference; and are not intended to, and shall not
govem, limit or aid in the construction of any terms or provisions contained herein.
12. Further actions. The parties to this Restrictive Covenant agree to execuYe such
further documents and take such further actions as may be reasonab(y required to carry out the
provisions and intenf of this Restrictive Covenant or any agreement or document relating hereto
or entered into in connection herewith.
13. Notices. Any notice which is required to be given under this Restrictive
Covenant shall be given by mailing the same, ceRified mail, return receipt requested, properly
addressed and with postage fully prepaid to any address provided herein or to any subsequent
mailing address of any additional parties; as long as prior written notice of the change of address
or additional parties has been given to the other parties to this Restrictive Covenant.
To %z AS Ranch Holdings, LLC:
Andrew C. Saltonstall
1087 Hook Spur Road
Basalt, CO 81621
To County:
Boazd of County Commissioners of Pitkin County
530 E. Main Street, 3`� Floor
Aspen, CO 81611
. With Copies To:
John M. Ely
Pitkin County Attorney
530 E. Main Street, Suite 302
Aspen, CO 81611
14. County ApprovaL Nothing in this Restrictive Covenant shall be construed to mean
that any uses, structures or construction permitted herein have been given approval by Eagle
County in its governmental capacity. To the extent that any provision of this Restrictive
Covenant differs from the land use regulations of Eagle County, the more restrictive provision
shall apply. 'h AS Ranch, or its successors or assigns, shall be solely responsible for obtaining all
other approvals necessary for the lawful use of the Retained Parcel.
15. Waiver. Failure of the County to exercise any right or remedy granted under this
Restrictive Covenant shall not have the effect of waiving or limiting the exercise of the County,
or of any other right or remedy or Yhe indication of such right or remedy at any future time.
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16. Choice of Law. This Restrictive Covenant and every related document is to be
governed by and construed in accordance with the laws of the State of Colorado.
17. Counterparts. This Restrictive Covenant may be executed in multiple
counterparts each of which shall constitute an original but all of which when taken together shall
constitute one and the same document.
_ 18. Severability. If any provisions of this RestricYive Covenant shall be invalid,
illegal or unenforceable, it shall not affect or impair the validity, legality or enforceability of this
Restrictive Covenant itself or of any other provision hereof, and there shall be substituted for the
affected provision, a valid and enforceable provision as similar as possible to the affected
provision.
19. Entire Agreemenk This Restrictive Covenant and any other documents made or
given in connection herewith or therewith constitute the entire understanding and agreement
between the parties with respect to the matters provided for herein and supersedes all prior
written or oral understandings and agreements between the parties with respect thereto.
IN WITNESS WHEREOF, the parties have executed this Restrictive Covenant to be
effective as of the date set foRh above.
1/2 AS RANCH HOLDINGS, LLC, a Colorado limited
liability com
��
By:
Andrew C. Sa onstall, Manager
State of Colorado )
) ss.
County of Pitkin )
The foregoing Restrictive Covenant was acknowledged before me thisa78 day of
January 2013, by Andrew C. Saltonstall as Manager of 1/2 AS Ranch Holdinps, LLC, a
Colorado limited ]iability company.
Witness my hand and official seal
My commission expires on: ' //' / �1 - .
Notary Public
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�:'NOTARY ;
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�•, PUBLIG '
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BUS_RIJ4572279.1 Idy CommiSSia�E�pirea 07117f1015
ACCEPTED BY
Board of County Commissioners of
Pit 'n County
N�(',v�-�.
By: eorge ewm , Chairman
State of Colorado )
) ss.
County of Pitkin )
The foregoing Restrictive Covenant was acknowledged before me thisa�day of
January, 2013, by Andrew C. Saltonstall as Manager of 1/2 AS Ranch Holdings, LLC, a
Colorado limited liability company.
Witness my hand and official seal
My commission ex ires on: My Commission Expires
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