HomeMy WebLinkAboutbocc.con.247.2013 RECEPTION#: 602804, 08/26/2013 at
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t OF 30, R $0.00 Doc Code ORDINANCE
CONTRACT#5g --moo/3 Janice K. Vos Caudill, Pitkin County, CO
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C ORDINANCE OF THE
BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
ACCEPTING THE ANTHESBROWN CONSERVATION EASEMENT
ORDINANCE NO. ( /7 -2013
RECITALS
1. Pursuant to Resolution 094-2012, the BOCC designated the Anthes/Brown site onto
the Pitkin County Historical Register and conditionally granted two TDRs, pending
the creation of a conservation easement and management plan for the site.
2. The Archeological Conservancy has assisted Open Space Staff in crafting a
conservation easement and management plan.
NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of
Pitkin County, Colorado that:
The Board accepts the conveyance of the Anthes Brown conservation easement which
will provide as follows-
> The development right on the parcel will be eliminated.
• The area of archeological significance will be protected from disturbance from
landscaping and other actions that would threaten the resource.
> The artifacts will be commonly owned by the landowner and the grantees of the
easement(Pitkin County and the Archeological Conservancy).
➢ The property will furthermore be managed in accordance with a Cultural Resource
•Management Plan that will further provide for fencing and public display of artifacts
'subject to strict inventory controls.
Upon approval of the Open Space Director and County Attorney, the Chair is authorized
to execute an acceptance of a conservation easement deed.
INTRODUCED, FIRST READ, AND APPROVED ON THE 12th DAY OF
JUNE,2013.
NOTICE OF PUBLIC HEARING PUBLISHED IN THE ASPEN TIMES
WEEKLY ON THE /3 DAY OF V►t L 2013.
/CM" c11,11.set
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APPROVED UPON SECOND READING AND PUBLIC HEARING ON
THE11- DAY OFMAY 2013.
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PUBLISHED AFTER ADOPTION IN THE WEEKEND EDITION OF THE
ASPEN TIMES ON THE Q444"DAY OF a(X)r,4- , 2013.
ATTEST: BOARD OF COUNTY COMMISSIONERS
PITKIN COUNTY COLORADO
1,
e'. ette Jones George Newm I n
De uty Clerk Chair
Date: - 5/1 7
APPROVED AS TO FORM:
SAP
John El Jon Peacock r
Con' At , ey County Manager
0 //A
Dale Will, Director
Open Space and Trails Program
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Recording requested by and return to
PITKIN COUNTY OPEN SPACE&TRAILS
530 East Main Street,Suite 300
Aspen,CO 81611
DEED OF CONSERVATION EASEMENT
FOR THE SOPRIS ARCHAIC ARCHEOLOGICAL PRESERVE
THIS DEER OF CONSERVATION EASEMENT (the "Easement") is made and entered
into this day of PL5us f , 20)3 between'Jody Anthes and David A. Brown having an address of
2330 Bear Ridge Road, Basalt, Colorado 81621 (the "Grantor"), and the Board of County
Commissioners of Pitkin County, Colorado, a body corporate and politic, having its address at 530
East Main Street, Suite 301, Aspen, Colorado 81611 (the "County") and The Archeological
Conservancy, having it address at 5301 Central Avenue NE, Suite 902, Albuquerque, New Mexico
87108-1517 (the "Conservancy"). The County and the Conservancy are collectively referred to
herein as "Co-Grantees". Grantor and Co-Grantees may be collectively referred to as the "Parties"
and individually as a"Party".
The following exhibits are attached hereto:
Exhibit A: Legal Description of the Property
Exhibit B: Map of the Property
Exhibit C: Baseline Attestation
RECITALS:
A. Grantor is the record owner of that certain real property in Pitkin County, Colorado,
consisting of approximately 44.03 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
"Property";
B. The Property possess natural, scenic,open space,wildlife, historical,and recreational
values (collectively referred to as the"Conservation Values")of importance to Grantor,the Grantee,
the people of Pitkin County, and the people of the state of Colorado that worthy of preservation;
C. The Conservation Values of the Property are more particularly described in the
Baseline Documentation, described in Section 2 herein, and include the following conservation
purposes, the protection of which are recognized for qualified conservation contributions under
Section 170(h)(4)(A) of the Internal Revenue Code of 1986, as amended ("IRC"), and under Section
1.170A-14(d)of the Treasury regulations:
• Relatively Natural Habitat [§1.170A-14(d)(3)I: For the most part, the native plant
communities on the Property are in fair to excellent condition. The dominant plant
communities on the Property can be described as follows: (1) mountain big sagebrush
shrublands and(2)Gambel oak dominated mixed montane shrubland. The Property is home
to sagebrush shrubland associations designated as rare and/or imperiled by the Colorado
Natural Heritage Program ("CNHP"). Protecting sagebrush shrublands in Colorado has been
identified by a number of governmental and non-governmental agencies as a conservation
priority.
Portions of the Property lie within active mule deer (Odocoileus hemionus) and Rocky
Mountain elk (Cervus canadensis nelsoni) overall range and is within .25 miles of elk
production areas. Bobcats, coyotes, long- and short-tailed weasels, mountain lions, and red
fox all are likely to occur on the Property. The Property lies within an important black bear
fall concentration area.
• Open Space [§1.170A-14(d)(4)1: The Property qualifies as open space because it will be
preserved for the scenic enjoyment of the general public and is pursuant to a clearly
delineated governmental conservation policy. Conservation of the Property will further yield
a significant public benefit. The Property is highly visible from Bear Ridge Road and
surrounding public lands managed by the Bureau of Land Management (BLM).and United
States Forest Service (USFS) and will add to the enjoyment of the general public and will
yield a significant public benefit. Development of the Property would lead to severe
degradation of the historic resources and character of the Property.
• Historic Preservation [§1.170A-14(d)(5)]:The Property encompasses an archeological site
that qualifies as historically important land area that meets the National Register Criteria for
Evaluation and is depicted on Exhibit B (the "Archeological Area"). The Property has also
been deemed eligible to be listed on the Colorado State Register of Historic Places by the
Office of the State Archeologist. The Pitkin County Board of County Commissioners
resolved to designate the Property to the Pitkin County Historic Register on November 15,
2012 (Resolution #94-2012, Reception #593989). The Archeological Area is located at an
elevation of about 7,800 ft., a rare and unique location for known Archaic sites in Colorado.
D. The conservation purposes of this Easement are recognized by, and the grant of this
Easement will serve, at least and without limitation, the following clearly delineated governmental
conservation policies;
• Colorado Revised Statutes §§ 38-30.5-102 provide for the establishment of
conservation easements to maintain land "in a natural, scenic, or open condition, or
for wildlife habitat, or for agricultural...or other use or condition consistent with the
protection of open land, environmental quality or life-sustaining ecological
diversity."
• The Colorado Wildlife and Parks and Outdoor Recreation statutes,Colorado Revised
Statutes §§ 33-1-101 and §§ 33-10-101, which provide, respectively, that "it is the
policy of the state of Colorado that the wildlife and their environment are to be
protected, preserved, enhanced, and managed for the use, benefit, and enjoyment of
the people of this state and its visitors" and that"it is the policy of the state of
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Colorado that the natural, scenic, scientific, and outdoor recreation areas of this state
are to be protected, preserved, enhanced, and managed for the use, benefit, and
enjoyment of the people of this state and visitors of this state."
• The Western Governors' Association Policy Resolution 08-21 supports "voluntary
incentive-based methods for preserving open space, maintaining land and water for
agricultural and timber production, wildlife and other values."
- • Pitkin County addresses the need for protecting open space in its Home Rule Charter,
which contains the Open Space and Trails Program's enabling legislation under
Article XIII. Criteria for open space acquisitions include: (1) Areas within public
scenic viewplanes; (2) Incorporating or protecting significant wildlife habitat; (3).
Protecting riparian or wetlands areas; (4) Protecting other public lands from the
impacts of development.
• The Pitkin County Land Use Code states that the preservation of wildlife habitat,
open space and agricultural operations conforms with Policies 2-120 (Scenic
Quality), 2-160 (Wildlife Management) and 2-240 (Compatibility with Agricultural
Lands and Operations),2-280 (Compatibility with Public Lands), and 2-290 (Access
to Public Lands).
• The Pitkin County Strategic Plan supports conserving the natural environment within
the Community Vision which is supported by Core Focus Areas including; (1)
Flourishing Natural and Built Environment which states "Conserved natural.
resources and environment" as a Success Factor; and (2) Livable and Supportive
Community which states "Access to recreation..." as a Success Factor.
E. The Conservancy is a publicly supported, tax-exempt nonprofit organization and a
qualified organization under Sections 501(c)(3) and 170(h), respectively, of the Internal Revenue
Code of 1986, as amended, and the regulation promulgated therein, whose primary purpose is to.
promote the stewardship of cultural resources by exploring and protecting the past;and
NOW, THEREFORE, in consideration of the above and the mutual covenants,
terms, conditions; and restrictions contained herein, and pursuant to the laws of the State of
Colorado, and in particular C.R.S. § 38-30.5-101 et seq., Grantor hereby voluntarily grants and
conveys to Co-Grantees a conservation easement in gross in perpetuity over the Property, of the
nature and character and to the extent hereinafter set forth.
1. Purpose. The purpose of this Easement is to ensure the Conservation Values are
preserved and protected in perpetuity("Purpose"). This Purpose is in accordance with §170(h) of
the Internal Revenue Code of 1986, as amended, and the Treasury Regulations adopted pursuant
thereto. The intent of the Co-Grantees is to permit acts on and uses of the Property that are
consistent with the Purpose and to restrict or prohibit uses of the Property that are not consistent
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with the Purpose("Intent"). In this Easement "Consistent with the Purpose" shall mean acts on
and uses of the Property that have a positive impact, neutral impact, or no impact on the
Conservation Values as determined by Co-Grantees in its reasonable discretion. Notwithstanding
the foregoing, nothing in this Easement is intended to compel a specific use of the Property, such
as agriculture, other than the preservation and protection of the Conservation Values.
2. Baseline Documentation Report. The parties acknowledge that a written report
has been prepared, reviewed, and approved by all parties which documents the Property's
condition as of the conveyance date of this Easement (the "Baseline Report"). A copy of the
Baseline Report shall be kept on file with all parties and by this reference made a part hereof. The
parties acknowledge that the Baseline Report is intended to establish the condition of the Property
as of the conveyance date of this Easement, and all parties have acknowledged the same in a signed
statement, a copy of which is attached hereto as Exhibit C. The parties further agree that the
existence of the Baseline Report shall in no way limit the parties' ability to use other pertinent
information in resolving any controversy that may arise with respect to the condition of the
Property as of the conveyance date of this Easement.
3. Rights of Co-Grantees. To fulfill the Purposes of this Easement, Grantor appoints
the County as Lead Agency for this Easement. As such, the County shall be responsible for
annual monitoring visits to the Property, maintenance of baseline information and stewardship
files, and receiving Grantor notices and requests for approval under the Easement. The
Conservancy will serve as an advisory role with regards to all archeological activity.
Notwithstanding the forgoing, Grantor conveys the following additional rights to the Co-Grantees
in support of the Purposes of this Easement:
a. To preserve and protect the Conservation Values;
b. To enter upon the Property at reasonable times to monitor Grantor's
compliance with and, if necessary, to enforce the terms of this Easement; provided that such entry
shall be upon prior reasonable notice to Grantor, and Co-Grantees shall not unreasonably interfere
with Grantor's use and quiet enjoyment of the Property;
c. To prevent any activity on or use of the Property that is inconsistent with the
Purpose of this Easement and to require the restoration of such areas or features of the Property
that may be damaged by any inconsistent use;
d. To have all other rights conveyed by this Easement.
4. Reserved Rights. Grantor reserves to Grantor, and to Grantor's personal
representatives, heirs, successors, and assigns, all rights accruing from Grantor's ownership of the
Property, including the right to engage in or permit or invite others to engage in all uses of the
Property that are not prohibited or restricted herein and that do not substantially diminish or impair
the Conservation Values. Grantor retains the right to comply with 42 U.S.C. §§12101 et. seq. as
applicable and in accordance with the Conservation Values and consistent with the Purpose of this
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Easement. Without limiting the generality of the foregoing,the Grantor reserves the right to
engage in the following activities, so long as they are undertaken in compliance with applicable
local, state and federal laws and regulations and pursued in a manner that does not substantially
• diminish or impair the Conservation Values:
a.) Reserved Development Rights.
i.) Recreational Structures. Athletic fields, golf courses or ranges, race tracks,
helicopter pads, airstrips, and permanent or commercial shooting ranges are
prohibited. In the event the Property is open to unrestricted or limited public
access low-impact recreational structures including, but not limited to, benches and
interpretive signage may be allowed with written approval from the Co-Grantees.
ii.) Fencing. Grantor may maintain, repair, and replace existing fences and erect new
fences on the Property, provided such new or replaced fencing is consistent with
then-current Colorado Parks and Wildlife("CPW") guidelines for fencing in a
wildlife migration area so as to permit the movement of wildlife across the
Property, and is consistent with the Purposes of this Easement.
iii.) Temporary Structures.. The installation of temporary structures minimally
necessary to conduct scientific research, including excavation of archeological
resources in accordance with the Management Plan is permitted with prior approval
from the Co-Grantees. For the purposes of this Easement, temporary structures
shall be structures that do not have foundations or are otherwise not permanently
attached to the ground, are not served by utilities and may be removed without
significantly damaging the Conservation Values. Such temporary structures may
include tents, sheds, fabric sun shelters, benches, portable toilets, picnic tables or
similar types of temporary structures or improvements.
b.) Forest and Vegetation Management. Selective cutting, thinning and burning of trees and
vegetation on the Property is permitted to control fire danger, insects, disease and weeds;to
prevent personal injury and property damage; for construction of permitted-fences, trails,
roads or structures; or to maintain the health of the wildlife habitat or ecosystem so long as
vegetation removal activities do not affect the Archeological Area. Clear cutting or any
management activities performed for commercial purposes,or with the potential to damage
riparian areas, contribute to erosion, or negatively impact the scenic or wildlife
Conservation Values of the Property are prohibited. Reforesting or re-vegetation of the
Property is permitted so long as reforesting and re-vegetation does not substantially
diminish or impair the Conservation Values and the vegetation species are approved by the
Co-Grantees as some species roots have the potential to damage subsurface archeological
deposits.
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d.) Weed Control. Grantor agrees to control noxious weeds and invasive plant species on the
Property in accordance with the Colorado Noxious Weed Act,C.R.S. §§ 35-5.5-101 et seq.
as amended,and other applicable laws,and shall not intentionally introduce noxious weeds
or invasive species to the Property.
5. Prohibited and Restricted Uses. Any activity on or use of the Property
inconsistent with the Purpose of this Easement is prohibited. Without limiting the generality of the
foregoing,the following activities and uses are expressly prohibited, or restricted as set forth
below:
a. Development Rights. To fulfill the Purpose of this Easement, Grantor
hereby conveys to Co-Grantees all development rights deriving from,based upon or attributable to
the Property in any way, except those expressly reserved by Grantor herein. Development Rights
shall be held by Co-Grantees in perpetuity in order to fulfill the Purpose of this Easement, and to
ensure that such rights are forever released, terminated and extinguished as to Grantor, and may
not be used on or transferred off of the Property to any other property or used for the purpose of
calculating permissible lot yield of the Property or any other property. The construction of any
building, structure or other improvement, except as permitted in Paragraph 4(a), is prohibited.
b. Subdivision. The parties agree that the division, subdivision or de facto
subdivision of the Property, whether by legal or physical process, into two or more parcels of land
or partial or separate interests is prohibited. At all times the Property shall be owned and
conveyed as a single parcel which shall be subject to the provisions of this Easement. Ownership
of the single parcel by joint tenancy or tenancy in common is permitted; provided, however, that
Grantor shall not undertake any legal proceeding to partition, subdivide or divide in any manner
such undivided interests in the single parcel.
c. Timber Harvesting. Commercial timber harvesting is prohibited. Trees
may be cut to control insects and disease, to control invasive non-native species and to prevent
personal injury and property damage, and as permitted in Paragraph 4(b).
d. Artifacts. The Grantor shall not disturb, collect, or relocate nor shall the
Grantor give permission to any third party, person or entity to disturb, collect, or relocate artifacts
on or from any portion of the Property without prior approval from the Co-Grantees and in
accordance with the Management Plan. The artifacts found on the Property may not be sold or
permanently conveyed to any private or public entity, except that upon written agreement between
Grantor and Co-Grantees, artifacts may be donated (conveyed without monetary or other.
compensation) to a qualified curation facilities, including but not limited to museums, libraries,
and historic societies. Artifacts located on the Property will be deemed common property of the
Grantor and Co-Grantees.
e. Mining.
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(1)The exploration, mining, or extraction of minerals, oil, gas, or other
hydrocarbons, soils, sands, gravel, rock, or other materials on or below the surface of the Property
by Grantor is prohibited. Grantor, its heirs, successors, transferees or assigns shall not transfer,
lease or otherwise separate the soil, sand, gravel, rock, oil, natural gas, fuel or any other mineral
substance from the Property.
(2)Notwithstanding any of the foregoing to the contrary, soil, sand, gravel
or rock may be extracted upon written notice to but without further permission from Co-Grantees,
so long as such extraction is in accordance with the Management Plan. Any such extraction shall
be limited to an area less than one-half acre in size at any given time. Any area which is disturbed
by extraction must be re-vegetated and restored to a natural condition promptly after completion of
extraction. •
f. Paving and Road and Trail Construction. No portion of the Property shall
be paved or otherwise covered with concrete, asphalt, nor any other paving material, nor any new
road or trail constructed without Co-Grantee's approval.
g. Trash. The dumping or accumulation of any kind of trash or refuse on the
Property, including but not limited to household trash and hazardous chemicals, is prohibited.
Limited dumping or accumulation of other farm-related trash and refuse produced on the Property
is permitted, provided that such dumping does not substantially diminish or impair the
Conservation Values, and is confined within a total area less than one-quarter acre in size at any
given time. This paragraph shall not be interpreted to prevent the storage of agricultural products
and by-products on the Property in accordance with all applicable government laws and
regulations.
h. Motorized Vehicles. Motorized use of vehicles within the Archeological
Area on the Property is prohibited. Off road vehicle courses for snowmobiles, all-terrain
vehicles, motorcycles, or other motorized vehicles are prohibited within the Archeological Area.
i. Commercial or Industrial Activity.
(1) No industrial uses shall be allowed on the Property.
(2) Commercial uses are prohibited except in compliance with the
Management Plan and as approved by Co-Grantees pursuant to Paragraph
7, provided that such approval is based on a finding that such activities do
not significantly impact the Conservation Values of the Property, and those
that are consistent with the Purpose of this Easement. Any structure
associated with such commercial operations must be approved by
Co-Grantees, provided that such approval is based on a finding that such
activities do not significantly impact the Conservation Values of the
Property.
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j. Signage or Billboards. No signs or billboard shall be displayed or placed
on the Property, except as permitted by Paragraph 4(c).
6. Management Plan / Research. To facilitate periodic communication between
Grantor and Co-Grantees about management issues that may impact the Conservation Values,the
Property shall be operated and managed in accordance with a"Management Plan"jointly prepared
by Grantor and Co-Grantees. The Management Plan, which plan shall be initially agreed upon
within one year of the date of this Easement and shall be reviewed at least every five years
thereafter and updated if any party determines an update is necessary. Research shall be designed
and carried out to ensure that the scientific, cultural, archeological, historical, and educational
material shall be preserved, and in accordance with the Management Plan and all applicable state,
federal, and local law.
7. Grantor Notice and Co-Grantees Approval. The purpose of requiring Grantor to,
notify Co-Grantees prior to undertaking certain permitted activities is to afford Co-Grantees an
opportunity to ensure that the activities in question are designed and carried out in a manner
consistent with the Purpose of this Easement. Whenever notice is required, Grantor shall notify
Co-Grantees in writing not less than sixty (60) days prior to the date Grantor intends to undertake
the activity in question. The notice shall describe the nature, scope, design, location,timetable,and
any other material aspect of the proposed activity in sufficient detail to permit Co-Grantees to
make an informed judgment as to its consistency with the Purpose of this Easement. Where
Co-Grantee's approval is required, Grantor shall not undertake the requested activity until Grantor
has received Co-Grantee's approval in writing. Co-Grantees shall grant or withhold its approval
in writing within sixty(60) days of receipt of Grantor's written request therefor and submittal of
sufficient supporting details as described above, and Co-Grantee's failure to approve Grantor's
proposed activities during such period of time shall constitute a withholding by.Co-Grantees of
Co-Grantee's approval. Co-Grantee's approval may be withheld only upon Co-Grantee's
reasonable determination that the activity as proposed would substantially diminish or impair the
Conservation Values or would be inconsistent with the Purpose of this Easement.
8. Enforcement. If Co-Grantees finds what is believed to be a violation of this
Easement, Co-Grantees shall immediately notify Grantor in writing of the nature of the alleged
violation. Upon receipt of this written notice, Grantor shall either:
a. Restore the Property to its condition prior to the violation; or
b. Provide a written explanation to Co-Grantees of the reason why the alleged
violation should be permitted, in which event the parties agree to meet as soon as possible to
resolve their differences. If a resolution cannot be achieved at the meeting, the parties agree to
meet with a mutually acceptable mediator to attempt to resolve the dispute. Grantor shall
discontinue any activity that could increase or expand the alleged violation during the mediation
process. Should mediation fail to resolve the dispute, Co-Grantees may, at its discretion, take
appropriate legal action. When, in Co-Grantee's opinion, an ongoing or imminent violation could
irreversibly diminish or impair the Conservation Values, Co-Grantees may, take appropriate legal
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process. Should mediation fail to resolve the dispute, Co-Grantees may, at its discretion, take
appropriate legal action. When, in Co-Grantee's opinion, an ongoing or imminent violation could
irreversibly diminish or impair the Conservation Values, Co-Grantees may, take appropriate legal
action without pursuing mediation. If a court with jurisdiction determines that a violation is
imminent, exists,or has occurred, Co-Grantees may get an injunction to stop such violation,
temporarily or permanently. A court may also issue an injunction to require Grantor to restore the
Property to its condition prior to the violation.
9. Costs of Enforcement. Any costs incurred by Co-Grantees in enforcing the terms of
this Easement against Grantor, including, without limitation, costs of suit and attorneys' fees, and
any costs of restoration necessitated by Grantor's violation of the terms of this Easement shall be
borne by Grantor. If Grantor prevails in any action to enforce the terms of this Easement,
Grantor's costs of suit, including,without limitation, attorneys' fees and expenses, shall be borne
by Co-Grantees.
10. No Waiver or Estoppel. Forbearance by Co-Grantees to exercise their rights under
this Easement in the event of a violation of any term shall not be deemed or construed to be a
waiver by Co-Grantees of such term or of any subsequent violation of the same or any other term
of this Easement or of any of Co-Grantee's rights under this Easement. No delay or omission by
Co-Grantees in the exercise of any right or remedy upon any violation by Grantor shall impair such
right or remedy or be construed as a waiver. Grantor hereby waives any defense of laches,
estoppel, or prescription, including the one year statute of limitations for commencing an action to
enforce the terms of a building restriction or to compel the removal of any building or
improvement because of the violation of the same under C.R.S. § 38-41-119, et seq.
II. Acts Beyond Grantor's Control. Nothing contained in this Easement shall be
construed to entitle Co-Grantees to bring any action against Grantor for any injury to or change in
the Property resulting from causes beyond Grantor's control, including, without limitation, fire,
flood, storm, and earth movement, or from any prudent action taken by Grantor under emergency
conditions to prevent, abate, or mitigate significant injury to the Property resulting from such
causes. Notwithstanding the foregoing, the Grantor shall take reasonable efforts to prevent third
parties from performing, and shall not knowingly allow third parties to perform, any act on or
affecting the Property that is inconsistent with the Purpose of this Easement.
12. Access. The general public shall have access to the Property, subject to any
restrictions or regulations imposed in the Management Plan or as otherwise mutually agreed on by
the parties as necessary and appropriate to protect public health and safety(including closures
during construction, maintenance,or for emergency or administrative purposes), and to protect the
Property's scenic and natural Conservation Values (including seasonal closures).
13. Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs
and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the
Property, including weed control and eradication and including the maintenance of adequate
comprehensive general liability insurance coverage. Grantor shall keep the Property free of any
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liens arising out of any work performed for, materials furnished to, or obligations incurred by
Grantor.
14. Taxes. Grantor shall pay before delinquency all taxes, assessments, fees, and
charges of whatever description levied on or assessed against the Property by competent authority
(collectively"taxes"), including any taxes imposed upon, or incurred as a result of,this Easement,
and shall furnish Co-Grantees with satisfactory evidence of payment upon request.
15. Hold Harmless. Grantor shall hold harmless, indemnify, and defend Co-Grantees
and the members, directors, officers, employees, agents, and contractors and the heirs,
representatives, successors, and assigns of each of them (collectively"Indemnified Parties") from
and against all liabilities, penalties, costs, losses, 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 of any person, or physical damage to any
property, resulting from any act, omission, condition, or other matter related to or occurring on or
about the Property, regardless of cause, unless due solely to the negligence of any of the
Indemnified Parties; (2)the obligations specified in Paragraph 9 herein; and (3) the presence or
release of hazardous or toxic substances on, under or about the Property. For the purpose of this
paragraph, hazardous or toxic substances shall mean any hazardous or toxic substance that is
regulated under any federal, state or local law. Without limiting the foregoing, nothing in this
Easement shall be construed as giving rise to any right or ability in Co-Grantees, nor shall
Co-Grantees have any right or ability, to exercise physical or managerial control over the
day-to-day operations of the Property, or otherwise to become an operator with respect to the
Property within the meaning of The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
20. Notices. Any notice, demand, request, consent, approval, or communication that
either party is required to give to the other in writing shall be either served personally or sent by
first class mail, postage prepaid, addressed as follows:
To Grantor:
•
Jody Anthes and David A. Brown
2330 Bear Ridge Road
Basalt, Colorado 81621
To The County:
Pitkin County Board of County Commissioners
c/o Open Space and Trails Director
530 East Main Street
Aspen, Colorado 81611
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•
To The Conservancy:
The Archeological Conservancy
5301 Central Avenue NE, Suite 902
Albuquerque, New Mexico 87108-1517
or to such other address as any party from time to time shall designate by written notice to the
other.
23. Grantor's Representations and Warranties. Grantor represents and warrants that,
to its knowledge and without duty of inquiry:
a. No substance defined, listed, or otherwise classified pursuant to any federal, state, or
local law, regulation or requirement as hazardous, toxic, polluting, or otherwise threatening to
human health or the environment exists or has been used or released on the Property;
b. There are not now any storage tanks located on the Property, and no underground
storage tanks have been removed from the Property in a manner not in compliance with applicable
laws, regulations and requirements;
c. Grantor and the Property are in compliance with all federal, state, and local laws,
regulations, and requirements applicable to the Property and its use, and there is no existing,
pending or threatened litigation in any way affecting, involving, or relating to the Property; and
d. Grantor has good and sufficient title to the.Property and has lawful authority to grant
and convey this Easement,that any mortgages or liens on the Property are subordinate to the terms
of this Easement,and that Grantor shall warrant and forever defend title to the Easement against all
and every person or persons lawfully claiming by,through and under Grantor the whole or any part
thereof, except for rights-of-way, easements, restrictions, covenant and mineral reservations of
record.
24. Subsequent Liens on the Conservation Land. No provisions of this Easement shall
be construed as impairing the ability of Grantor to use the Property as collateral for subsequent
borrowing, provided that any mortgage or lien arising from such a borrowing shall be subordinate
to this Easement.
25. Recording. Co-Grantees shall record this instrument in a timely fashion in the
official records of each county in which the Property is situated,and may re-record it at any time as
may be required to preserve its rights in this Easement.
26. General Provisions.
11
/3
a. Controlling Law. The interpretation and performance of this Easement
shall be governed by the laws of the State of Colorado.
b. Liberal Construction. Any general rule of construction to the contrary
notwithstanding,this Easement shall be liberally construed in favor of the grant to effect the
Purpose of this Easement and the policy and purpose of C.R.S. §38-30.5-101, et seq. If any
provision in this instrument is found to be ambiguous,an interpretation consistent with the Purpose
of this Easement that would render the provision valid shall be favored over any interpretation that
would render it invalid.
c. Severability. If any provision of this Easement, or the application thereof
to any person or circumstance, is found to be invalid, the remainder of the provisions of this
Easement, or the application of such provision to persons or circumstances other than those as to
which it is found to be invalid, as the case may be, shall not be affected thereby.
d. Entire Agreement. This instrument sets forth the entire agreement
between Grantor and Co-Grantees with respect to the Easement and supersedes all prior
discussions, negotiations, understandings, or agreements relating to the Easement, all of which are
merged herein.
f. Joint Obligation. The obligations imposed upon the Grantor and
Co-Grantees of this Easement shall be joint and several in the event that more than one entity or
individual holds either interest at any given time.
g. Non-Merger. This Easement shall not be interpreted as creating a right of
Co-Grantees to acquire fee simple title to the Property. Nonetheless, if Co-Grantees wish to
acquire fee title to the Property or any additional interest in the Property(such as a leasehold),
Co-Grantees may do so.
h. Successors. The covenants, terms, conditions, and restrictions of this
Easement shall be binding upon, and inure to the benefit of, the parties hereto and their respective
personal representatives, heirs,successors,and assigns and shall continue as a servitude running in
perpetuity with the Property. With the prior written consent of Grantor and the County (which
consent shall not be unreasonably withheld)the Archeological Conservancy shall have the right to
transfer the easement created by this Deed and to assign its rights thereunder to any private
nonprofit organization that also has expertise in the conservation of archeological resources, and
that, at the time of transfer, is a qualified organization under § 170(h) of the IRC, and under
Colorado Revised Statutes §38-30.5-101, et seq., (a"Qualified Organization"), expressly agrees to
assume the responsibility imposed on Grantees by this Deed and agrees that the conservation
purposes that this Deed is to advance continue to be carried out. If Grantees desire to transfer
this Deed to a Qualified Organization having similar purposes as Grantees, but Grantor or the
County refuses to approve the transfer, a court with jurisdiction shall transfer this Deed to another
Qualified Organization having similar purposes and mission as Grantees and that agrees to assume
12
/V
the responsibility of enforcing this Deed, provided that Grantor and the Board receive notice of
and an opportunity to participate in the court proceeding.
i. Termination of Rights and Obligations. Each party's rights and obligations
under this Easement terminate upon transfer of such party's interest in the Easement or the
Property, except that liability for acts or omissions occurring prior to transfer shall survive
transfer.
j. Captions. The captions in this instrument have been inserted solely for
convenience of reference and are not a part of this instrument and shall have no effect upon its
construction or interpretation.
k. No Third Party Beneficiaries. This Easement is entered into by and
between Grantor and Co-Grantees, and is solely for the benefit of Grantor, Co-Grantees, and their
respective successors and assigns for the purposes set forth herein, and does not create rights or
responsibilities in any third parties beyond Grantor and Co-Grantees.
Amendment. If circumstances arise under which an amendment to or
modification of this Easement or any of its exhibits would be appropriate, Grantor and
Co-Grantees may jointly amend this Easement so long as the amendment(a) is consistent with the
Conservation Values and Purpose of this Easement, (b) does not affect the perpetual duration of
the restrictions contained in this Easement, (c) does not affect the qualifications of this Easement
under any applicable laws, (d)complies with Co-Grantee's procedures and standards for
amendments (as such procedures and standards may be amended from time to time). Any
amendment must be in writing, signed by all parties, and recorded in the records of the Clerk and
Recorder of the county or counties in which the Property is located. Nothing in this paragraph
shall be construed as requiring Grantor or Co-Grantees to agree to any particular proposed
amendment.
m. Change of Conditions. A change in the potential economic value of any use
that is prohibited by or inconsistent with this Easement, or a change in any current or future uses of
neighboring properties, shall not constitute a change in conditions that makes it impossible for
continued use of the Property for conservation purposes and shall not constitute grounds for
terminating the Easement in whole or in part.
n. • Authority to Execute. Each party represents to the other that such party
has full power and authority to execute, deliver, and perform this Easement, that the individual
executing this Easement on behalf of said party is fully empowered and authorized to do so, and
that this Easement constitutes a valid and legally binding obligation of said party enforceable
against said party in accordance with its terms.
IN WITNESS WHEREOF,Grantor and Co-Grantees have executed this Easement as of the
day and year first above written.,
13
/5
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOLLON9 12
14
ACCEPTED by CO-GRANTEES:
The Archeological Conservancy,
A California nonprofit corporation,
�� a
By: al di
Jar es B. Walker
Vi. e President
STATE OF NEW MEXICO )
)ss.
COUNTY OF Bernalillo
The foregoing instrument was acknowledged before me this23 day of August,2013, by
james_aa as Vice President of The Archeological Conservancy, California
nonprofit corporation.
WITNESS my hand and official seal.
[SEAL]
OFFICIAL SEAL Notary Public
tl TIONE E.JOSEPH My commission expires:u/30113
: NOTARY PUBLIC-STATE AF TEl MEXICO
t 0c' I My comely; expires:. II1DI13
BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, Colorado,
a body clorate and politic
George Newin , Chairman k
S' 0
IAATE OF COLORADO �e�
)s
COUNTY OF PITKTN
The foregoing document was acknowledged before me on this_day of June, 2013,by
George Newman, Chairman of the BOARD OF COUNTY COMMISSIONERS OF PITKIN
COUNTY, Colorado,a body corporate and politic.
WITNESS my hand and official seal.
[SEAL]
Notary Public
My commission expires:
15
/7
ACCEPTED by CO-GRANTEES:
The Archeological Conservancy,
a nonprofit corporation,
By:
STALL OF COLORADO )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of June, 2013, by
as Executive Director of The Archeological Conservancy, a
nonprofit corporation.
WITNESS my hand and official seal.
[SEAL]
Notary Public
My commission expires:
BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, Colorado,
a body c'ijorate and politic
George ewm. Chairman
STATE OF COLORADO
ss.
COUNTY OF PITKIN ) A JA-4
The foregoing document was acknowledged before me on this \n flay ofJtee 2013, by
George Newman,Chairman of the BOARD OF COUNTY COMMISSIONERS OF PITKIN
COUNTY, Colorado, a body corporate and politic. a�2
WITNESS ms,`, �o. llllcial seal. V
[SEAL] �Sare A. q �y'' No /uN c
•
if ETA s: _ My commission expires: My Commission Expires
�e.` August 4,2015
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15
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GRANTOR
dAjt
PMTe5
STATE OF COLORADO )
) ss.
COUNTY OF PITKIN )
The forgoing was acknowledged before me this oda day of ' cu.1 u.S4 2013 by
,SorLA fryx ne5 •
Witness my hand and official seal
My Commission Expires
My commission expires: August 4.2015
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STATE OF COLORADO )
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COUNTY OF PITKIN )
The forgoing was acknowledged before me this(D(D day of / ,jj u-s4 2013 by
Witness my hand and official seal
My commission expires: My Commission Expires ttt
%%%%%%%Actte '''' August 4, 2015
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EXHIBIT A TO DEED OF CONSERVATION EASEMENT
(Legal Description of Property)
•
LEGAL DESCRIPTION
The Land referred to herein is located in the County of Pitkin,State of Colorado,and described as
follows:
SECTION 36 PARCEL NO.7
A PARCEL OF LAND SITUATED IN THEN 1/2 OF SECTION 36,TOWNSHIP 8 SOUTH,RANGE
87 WEST OF THE 6TH PRINCIPAL MERIDIAN,BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF THE NW 1/4 OF THE SW 1/4 OF SAID
SECTION 36,WHENCE THE WEST 1/4 CORNER OF SAID SECTION 36 BEARS S89°59'25" W
1316,92 FEET;
THENCE FOLLOWING THE NORTH LINE OF SAID NW 1/4 OF THE SW 1/4 S89°5925" W 397.59
FEET;
THENCE N 05°38'E 987.80 FEET;
THENCE 124.39 FEET ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF
305.00 FEET;
THENCE N 29°00'E 310.00 FEET;
THENCE 131.74 FEET ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF
148.00 FEET;
THENCE EAST 1038.32 FEET;
THENCE S 28°58'22"E 694.32 FEET;
THENCE S 45°52'W 222.00 FEET;
THENCE S 41°59'16" W 483.36 FEET;
THENCE S 69°47'24" W 940.00 FEET TO THE POINT OF BEGINNING.
TOGETHER WITH THE EASEMENTS AS SET FORTH IN DEED RECORDED IN BOOK 292 AT
PAGE 766.
EXHIBIT B TO DEED OF CONSERVATION EASEMENT
(Map of Property)
;3
107°3'50"W 107°3'40"W 107°3'30"W
I I
— % Sopris Archaic•
Archeological Preserve
k °%
�i D ° Archeological Area -
C %
•39°19'0"N- , \\%
% -39°19'0"N
U %
N
q ) ���� Legend
A
;'
A % �/1) —Roads
B i" I ? ClArcheological Area Boundary
/ I /ii L lConservation Easement Boundary
• Archeological Area Corner UTM Points
e / '�
49/ p�/
R UTM Points Latitude Longitude
11 ��` o° A 39° 18' 57.981" N 107°3' 50.247"W
ppII �Pa- / - iii B 39° 18' 57.775" N 107°3'45.983" W
0 or / C 39° 19' 1.133" N 107°3'42.807" W
I / _ - D 39°19'2.474" N 107°3'44.564" W
E 39° 19'2.933" N 107°3'48.009"W
1 % - F 39° 19'0.299" N 107°3'49.939"W
�, %�� [1TM Projected Coordinate System.
I / -/ NAD_1983_StatePlane Colorado_CentraLCIPS_0502_Feet
39°18'50"N- c - -% �./
•-39°18'50"N
/
I
1 1 1
107°3'50"W 107°3'40"W 107°3'30"W
0 130 260 520 780 1,040
1-1 h1 i----1 I I Feet
EXHIBIT C TO DEED OF CONSERVATION EASEMENT
(Baseline Documentation Attestation)
•
�5
Baseline Condition Report u,
Sopris Archaic Archeological Preserve August 23,2013
a
Owner Acknowledgement Statement
In compliance with §1.170-14(g)(5)(i)(D) of the Federal Tax Regulations, this Baseline
Condition Report, including text, maps, and photos, is an accurate representation of the Property
as of June 18, 2013, the date of the site assessment of the Property. The conservation values
include native vegetation,wildlife habitat including important Rocky Mountain elk production
areas, scenic viewsheds, and historic preservation
•
GRANTOR: the L
Jody Ant Date
y V \
j IA 41/4 e1/3
David Brown Date
{ 1
GRANTEES: 5- 26- 13.1— ,‘t2.,
Dale Will, Director Date
Pitkin County Open Space& Trails
• 4\3- 23 70\3
r heological Conservancy Date
PageI3
016
JODY ANTHES and DAVID A. BROWN
DEED OF TRUST SUBORDINATION AGREEMENT
et THIS DE D OF TRUST SUBORDINATION AGREEMENT, made this
/G day of U6 F 2013, between Walter Wieben, an individual whose
address is: 625 Lari t Road, Silt, CO 81652 ("Lender"), and the Board of County
Commissioners of Pitkin County, Colorado, a body corporate and politic, 530 E. Main
Street, Aspen, CO 81611 (the "County").
WITNESSETH:
WHEREAS, Lender is the holder of that certain Deed of Trust dated October 11,
2011 granted by Jody Anthes and David A. Brown ("Borrower") in favor of Lender to
secure an indebtedness in the original principal amount$200,000.00 (Two Hundred
Thousand and 00/100 Dollars) (the"Deed of Trust");
WHEREAS, the Deed of Trust created a lien on certain real property owned by
Borrower in Pitkin County, Colorado more particularly described in Exhibit A, attached
hereto and made part hereof("the Property");
WHEREAS, the Deed of Trust was recorded in the land records of Pitkin County,
Colorado on October 13, 2011 at Reception No. 583499;
•
WHEREAS, Borrower has agreed to grauit to the County a Conservation
Easement(collectively the "Easement") restricting the use of the Property;
WHEREAS, a true and complete copy of the Easement has been provided to
Lender;
WHEREAS, the Easement, when granted and recorded shall constitute an interest
or charge upon the Property that is unconditionally prior and superior to the rights,
interests, liens', or charges of the Lender and Deed of Trust;
WHEREAS, the County has agreed to accept the grant of the Easement, subject to
the subordination or discharge of all prior liens, Deed of Trusts, and other encumbrances
affecting the Property;
7 /
WHEREAS, the Easement in favor of the County shall unconditionally be
and remain at all times an interest or charge on the Property, prior and superior to the lien
or charge of the Deed of Trust; and
WHEREAS, Lender is willing to subordinate the lien of the Deed ojTrust to the
Conservation Easement, which is recorded at Reception No. 6n g0 S , in the
records of the Pitkin County Clerk and Recorder.
NOW, THEREFORE, for $10 and other good and valuable consideration, the
receipt of which is hereby acknowledged, and intending to be legally bound hereby,
Lender and County agree as follows:
1. The Deed of Trust, and all of Lender's rights, interests, claims, remedies
and privileges under the Deed of Trust are, and at all times shall continue to be, subject
and subordinate in all respects to the Easement, with the same force and effect as if the
Easement had been executed, delivered and recorded prior to the execution and delivery
of the Deed of Trust.
2. If any action or proceeding is commenced by Lender for the foreclosure of
the Deed of Trust or the sale of all or part of the Property, the County will not be named
as a party therein, and the sale of the Property (or a portion thereof) in any such action or
proceeding shall be made subject to all rights of the County under the Easement.
3. If Lender shall become the owner of the Property by reason of the
foreclosure of the Deed of Trust or the acceptance of a Deed or Assignment in Lieu of
Foreclosure or otherwise, the Easement shall not be affected thereby, but shall continue
in full force and effect, and Lender shall abide by all of the terms, covenants and
conditions set forth in the Easement.
4. In all other respects the Deed of Trust shall remain in full force and effect.
Nothing contained herein shall be deemed to release or discharge any of the indebtedness
or other obligations of Borrower to Lender contained in or secured by the Deed of Trust.
5. All notices, requests, demands, elections, consents, approvals and other
communications under this Agreement (each such communication, hereinafter, a
"notice") must be in writing and delivered by hand, by United States mail or by
commercial express courier service to Lender and the County at the following addresses
(or at any other address which Lender or the County may designate by notice from time
to time):
If to Lender: Walter Wieben
625 Lariot Road
Silt, CO 81652
If to County: Board of County Commissioners of Pitkin County
530 E. Main Street, 3rd Floor
Aspen, Colorado 81611
21
With Copies to: Pitkin County Attorney
530 E. Main Street, Ste. 302
Aspen, Colorado 81611
6. This Agreement shall be binding upon and inure to the benefit of Lender
and the County and their respective successors and assigns.
7. This Agreement may not be amended or modified except by an instrument
in writing executed by both parties.
8. This Agreement shall be construed and enforced in accordance with the
laws of the State of Colorado, and venue shall lie in Pitkin County.
9. This Agreement constitutes the full and final agreement between the
parties, and all prior and contemporaneous understandings of the parties are merged
herein.
10. This Agreement may be executed in duplicate original counterparts, each
of which shall have the same binding force and effect.
IN WITNESS WHEREOF, Lender and the County have duly executed this
Agreement as of the date first above written.
By: (JCI i...
Name: Walter Wieben
Title: Lender
STATE OF COLORADO )
ss.:
COUNTY OF1-C`
The foregoing instrument was acknowledged before me this R., day of
PckSuSt , 2013 by ,Walter
Wieben as Lender on behalf of Jody Anthes and David A. Brown.
[SEAL] l JK Pen ''L"`C ka--
Notary Public
My Commission Expires: 9111(tie
AMIE TUCKER
NOTARY PUBLIC
STATE OF COLORADO oo y
NOTARY ID 20124058102
MY COMMISSION EXPIRES SEPT.18,2O1
•
EXHIBIT A
LEGAL DESCRIPTION
The Land referred to in herein is located in the County of Pitkin,State of Colorado,and described as
follows:
SECTION 36 PARCEL NO,7
A PARCEL OF LAND SITUATED IN THE N 1/2 OF SECTION 36,TOWNSHIP S SOUTH,RANGE
87 WEST OF THE 6Th PRINCIPAL MERIDIAN,BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF THE NW 1/4 OF THE SW 1/4 OF SAID
SECTION 36,WHENCE THE WEST 1/4 CORNER OF SAID SECTION 36 BEARS S89°59'25"W
1316.92 FEET;
THENCE FOLLOWING THE NORTH LINE OF SAID NW 1/4 OF THE SW 1/4 589 059125"W 397.59
FEET;
THENCE N 05°38'E 987.80 FEET;
THENCE 124.39 FEET ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF
305.00 FEET;
THENCE N 29°00'E 310.00 FEET;
THENCE 131.74 FEET ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF
148.00 FEET;
THENCE EAST 1038.32 FEET;
THENCE S 28°58'22"E.694.32 FEET;
THENCE S 45°52'W 222.00 FEET;
THENCE S 41°59'16"W 483.36 FEET;
THENCE S 69°47'24"W 940.00 FEET TO THE POINT OF BEGINNING.
TOGETHER WITH THE EASEMENTS AS SET FORTH IN DEED RECORDED IN BOOK 292 AT
PAGE 766. •
CONTRACT# p-y(o -'2D13 RECEPTION#: 602805, 08/26/2013 at
03:12:35 PM,
1 OF 24, R $0.00 Doc Code DEED
Recording requested by and return to: CC•NSERV
530 East COUNTY OPEN SPACE&TRAILS Janice gR Vos Caudill, Pitkin County, CO
530 East Main Street.Suite 300
Aspen.CO 81611
DEED OF CONSERVATION EASEMENT
FOR THE SOPRIS ARCHAIC ARCHEOLOGICAL PRESERVE
THIS DEER OF CONSERVATION EASEMENT (the "Easement") is made and entered
into thisG6"day of l5psf , 20J3 between Jody Anthes and David A. Brown having an address of
2330 Bear Ridge Road, Basalt, Colorado 81621 (the "Grantor"), and the Board of County
Commissioners of Pitkin County, Colorado, a body corporate and politic, having its address at 530
East Main Street, Suite 301, Aspen, Colorado 81611 (the "County") and The Archeological
Conservancy, having it address at 5301 Central Avenue NE, Suite 902, Albuquerque, New Mexico
87108-1517 (the "Conservancy"). The County and the Conservancy are collectively referred to
herein as "Co-Grantees". Grantor and Co-Grantees may be collectively referred to as the "Parties"
and individually as a"Party".
The following exhibits are attached hereto:
Exhibit A: Legal Description of the Property
Exhibit B: Map of the Property
Exhibit C: Baseline Attestation
RECITALS:
A. Grantor is the record owner of that certain real property in Pitkin County, Colorado,
consisting of approximately 44.03 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
"Property";
B. The Property possess natural, scenic, open space, wildlife, historical, and recreational
values (collectively referred to as the"Conservation Values")of importance to Grantor,the Grantee.
the people of Pitkin County, and the people of the state of Colorado that worthy of preservation;
C. The Conservation Values of the Property are more particularly described in the
Baseline Documentation, described in Section 2 herein, and include the following conservation
purposes, the protection of which are recognized for qualified conservation contributions under
Section I 70(h)(4)(A) of the Internal Revenue Code of 1986, as amended ("►RC"). and under Section
1.170A-14(d)of the Treasury regulations:
• Relatively Natural Habitat I§1.170A-14(d)(3)I: For the most part, the native plant
communities on the Property are in fair to excellent condition. The dominant plant
communities on the Property can be described as follows: (I) mountain big sagebrush
shrublands and(2)Gambel oak dominated mixed montane shrubland. The Property is home
to sagebrush shrubland associations designated as rare and/or imperiled by the Colorado.
Natural Heritage Program ("CNHP"). Protecting sagebrush shrublands in Colorado has been
identified by a number of governmental and non-governmental agencies as a conservation
priority.
Portions of the Property lie within active mule deer (Odocoileus hemionus) and Rocky
Mountain elk (Cervus canadensis nelsoni) overall range and is within .25 miles of elk
production areas. Bobcats, coyotes, long- and short-tailed weasels, mountain lions, and red
fox all are likely to occur on the Property. The Property lies within an important black bear
fall concentration area.
• Open Space [§1.170A-14(d)(4)]: The Property qualifies as open space because it will be
preserved for the scenic enjoyment of the general public and is pursuant to a clearly
delineated governmental conservation policy. Conservation of the Property will further yield
a significant public benefit. The Property is highly visible from Bear Ridge Road and
surrounding public lands managed by the Bureau of Land Management (BLM) and United
States Forest Service (USFS) and will add to the enjoyment of the general public and will
yield a significant public benefit. Development of the Property would lead to severe
degradation of the historic resources and character of the Property.
• Historic Preservation ]§1.170A-14(d)(5)]: The Property encompasses an archeological site
that qualifies as historically important land area that meets the National Register Criteria for
Evaluation and is depicted on Exhibit B (the "Archeological Area"). The Property has also
been deemed eligible to be listed on the Colorado State Register of Historic Places by the
Office of the State Archeologist. The Pitkin County Board of County Commissioners
resolved to designate the Property to the Pitkin County Historic Register on November 15,
2012 (Resolution #94-2012, Reception #593989). The Archeological Area is located at an
elevation of about 7,800 ft., a rare and unique location for known Archaic sites in Colorado.
D. The conservation purposes of this Easement are recognized by, and the grant of this
Easement will serve, at least and without limitation, the following clearly delineated governmental
conservation policies;
• Colorado Revised Statutes §§ 38-30.5-102 provide for the establishment of
conservation easements to maintain land "in a natural, scenic, or open condition, or
for wildlife habitat, or for agricultural...or other use or condition consistent with the
protection of open land, environmental quality or life-sustaining ecological
diversity."
• The Colorado Wildlife and Parks and Outdoor Recreation statutes, Colorado Revised
Statutes §§ 33-1-101 and §§ 33-10-101, which provide, respectively, that "it is the
policy of the state of Colorado that the wildlife and their environment are to be
protected, preserved, enhanced, and managed for the use, benefit, and enjoyment of
the people of this state and its visitors" and that -it is the policy of the state of
2 •
�2
Colorado that the natural, scenic, scientific, and outdoor recreation areas of this state
are to be protected, preserved, enhanced, and managed for the use, benefit, and
enjoyment of the people of this state and visitors of this state."
• The Western Governors' Association Policy Resolution 08-21 supports "voluntary
incentive-based methods for preserving open space, maintaining land and water for
agricultural and timber production, wildlife and other values."
• Pitkin County addresses the need for protecting open space in its Home Rule Charter,
which contains the Open Space and Trails Program's enabling legislation under
Article XIII. Criteria for open space acquisitions include: (1) Areas within public
scenic viewplanes; (2) Incorporating or protecting significant wildlife habitat; (3)
Protecting riparian or wetlands areas; (4) Protecting other public lands from the
impacts of development.
• The Pitkin County Land Use Code states that the preservation of wildlife habitat,
open space and agricultural operations conforms with Policies 2-120 (Scenic
Quality), 2-160 (Wildlife Management) and 2-240 (Compatibility with Agricultural
Lands and Operations), 2-280 (Compatibility with Public Lands), and 2-290 (Access
to Public Lands).
• The Pitkin County Strategic Plan supports conserving the natural environment within
the Community Vision which is supported by Core Focus Areas including; (I)
Flourishing Natural and Built Environment which states "Conserved natural
resources and environment" as a Success Factor; and (2) Livable and Supportive
Community which states "Access to recreation..." as a Success Factor.
E. The Conservancy is a publicly supported, tax-exempt nonprofit organization and a
qualified organization under Sections 501(c)(3) and 170(h), respectively, of the Internal Revenue
Code of 1986, as amended, and the regulation promulgated therein, whose primary purpose is to
promote the stewardship of cultural resources by exploring and protecting the past; and
NOW, THEREFORE, in consideration of the above and the mutual covenants,
terms, conditions, and restrictions contained herein, and pursuant to the laws of the State of
Colorado, and in particular C.R.S. § 38-30.5-101 et seq., Grantor hereby voluntarily grants and
conveys to Co-Grantees a conservation easement in gross in perpetuity over the Property, of the
nature and character and to the extent hereinafter set forth.
1. Purpose. The purpose of this Easement is to ensure the Conservation Values are
preserved and protected in perpetuity("Purpose"). This Purpose is in accordance with §170(h)of
the Internal Revenue Code of 1986, as amended, and the Treasury Regulations adopted pursuant
thereto. The intent of the Co-Grantees is to permit acts on and uses of the Property that are
consistent with the Purpose and to restrict or prohibit uses of the Property that are not consistent
3
• with the Purpose ("Intent"). In this Easement "Consistent with the Purpose" shall mean acts on
and uses of the Property that have a positive impact, neutral impact, or no impact on the
Conservation Values as determined by Co-Grantees in its reasonable discretion. Notwithstanding
the foregoing, nothing in this Easement is intended to compel a specific use of the Property, such
as agriculture, other than the preservation and protection of the Conservation Values.
2. Baseline Documentation Report. The parties acknowledge that a written report
has been prepared, reviewed, and approved by all parties which documents the Property's
condition as of the conveyance date of this Easement (the "Baseline Report"). A copy of the
Baseline Report shall be kept on file with all parties and by this reference made a part hereof. The
parties acknowledge that the Baseline Report is intended to establish the condition of the Property
as of the conveyance date of this Easement,and all parties have acknowledged the same in a signed
statement, a copy of which is attached hereto as Exhibit C. The parties further agree that the
existence of the Baseline Report shall in no way limit the parties' ability to use other pertinent
information in resolving any controversy that may arise with respect to the condition of the
Property as of the conveyance date of this Easement.
3. Rights of Co-Grantees. To fulfill the Purposes of this Easement, Grantor appoints
the County as Lead Agency for this Easement. As such, the County shall be responsible for
annual monitoring visits to the Property, maintenance of baseline information and stewardship
files, and receiving Grantor notices and requests for approval under the Easement. The
Conservancy will serve as an advisory role with regards to all archeological activity.
Notwithstanding the forgoing, Grantor conveys the following additional rights to the Co-Grantees
in support of the Purposes of this Easement:
a. To preserve and protect the Conservation Values;
b. To enter upon the Property at reasonable times to monitor Grantor's
compliance with and, if necessary, to enforce the terms of this Easement; provided that such entry
shall be upon prior reasonable notice to Grantor, and Co-Grantees shall not unreasonably interfere
with Grantor's use and quiet enjoyment Of the Property;
c. To'prevent any activity on or use of the Property that is inconsistent with the
Purpose of this Easement and to require the restoration of such areas or features of the Property
that may be damaged by any inconsistent use;
d. To have all other rights conveyed by this Easement.
4. Reserved Rights. Grantor reserves to Grantor, and to Grantor's personal
representatives, heirs, successors, and assigns, all rights accruing from Grantor's ownership of the
Property, including the right to engage in or permit or invite others to engage in all uses of the
Property that are not prohibited or restricted herein and that do not substantially diminish or impair
the Conservation Values. Grantor retains the right to comply with 42 U.S.C. §§12101 et. seq. as
applicable and in accordance with the Conservation Values and consistent with the Purpose of this
4
3V'
Easement. Without limiting the generality of the foregoing, the Grantor reserves the right to
engage in the following activities, so long as they are undertaken in compliance with applicable
local, state and federal laws and regulations and pursued in a manner that does not substantially
diminish or impair the Conservation Values:
a.) Reserved Development Rights.
1.) Recreational Structures. Athletic fields, golf courses or ranges, race tracks,
helicopter pads, airstrips, and permanent or commercial shooting ranges are
prohibited. In the event the Property is open to unrestricted or limited public
access low-impact recreational structures including, but not limited to, benches and
interpretive signage may be allowed with written approval from the Co-Grantees.
ii) Fencing. Grantor may maintain, repair, and replace existing fences and erect new
fences on the Property, provided such new or replaced fencing is consistent with
then-current Colorado Parks and Wildlife ("CPW") guidelines for fencing in a
wildlife migration area so as to permit the movement of wildlife across the
Property, and is consistent with the Purposes of this Easement.
iii.) Temporary Structures.. The installation of temporary structures minimally
necessary to conduct scientific research, including excavation of archeological
resources in accordance with the Management Plan is permitted with prior approval
from the Co-Grantees. For the purposes of this Easement, temporary structures
shall be structures that do not have foundations or are otherwise not permanently
attached to the ground, are not served by utilities and may be removed without
significantly damaging the Conservation Values. Such temporary structures may
include tents, sheds, fabric sun shelters, benches, portable toilets, picnic tables or
similar types of temporary structures or improvements.
b.) Forest and Vegetation Management. Selective cutting, thinning and burning of trees and
vegetation on the Property is permitted to control fire danger, insects,disease and weeds; to
prevent personal injury and property damage; for construction of permitted fences, trails,
roads or structures; or to maintain the health of the wildlife habitat or ecosystem so long as
vegetation removal activities do not affect the Archeological Area. Clear cutting or any
management activities performed for commercial purposes,or with the potential to damage
riparian areas, contribute to erosion, or negatively impact the scenic or wildlife
Conservation Values of the Property are prohibited. Reforesting or re-vegetation of the
Property is permitted so long as reforesting and re-vegetation does not substantially
diminish or impair the Conservation Values and the vegetation species are approved by the
Co-Grantees as some species roots have the potential to damage subsurface archeological
deposits.
5
35
d.) Weed Control. Grantor agrees to control noxious weeds and invasive plant species on the
Property in accordance with the Colorado Noxious Weed Act, C.R.S. §§ 35-5.5-101 et seq.
as amended,and other applicable laws, and shall not intentionally introduce noxious weeds
or invasive species to the Property.
5. Prohibited and Restricted Uses. Any activity on or use of the Property
inconsistent with the Purpose of this Easement is prohibited. Without limiting the generality of the
foregoing, the following activities and uses are expressly prohibited, or restricted as set forth
below:
a. Development Rights. To fulfill the Purpose of this Easement, Grantor
hereby conveys to Co-Grantees all development rights deriving from,based upon or attributable to
the Property in any way, except those expressly reserved by Grantor herein. Development Rights
shall be held by Co-Grantees in perpetuity in order to fulfill the Purpose of this Easement, and to
ensure that such rights are forever released, terminated and extinguished as to Grantor, and may
not be used on or transferred off of the Property to any other property or used for the purpose of
calculating permissible lot yield of the Property or any other property. The construction of any
building, structure or other improvement, except as permitted in Paragraph 4(a), is prohibited.
b. Subdivision. The parties agree that the division, subdivision or de facto
subdivision of the Property, whether by legal or physical process, into two or more parcels of land
or partial or separate interests is prohibited. At all times the Property shall be owned and
conveyed as a single parcel which shall be subject to the provisions of this Easement. Ownership
•
of the single parcel by joint tenancy or tenancy in common is permitted; provided, however, that
Grantor shall not undertake any legal proceeding to partition, subdivide or divide in any manner
such undivided interests in the single parcel.
c. Timber Harvesting. Commercial timber harvesting is prohibited. Trees
may be cut to control insects and disease, to control invasive non-native species and to prevent
personal injury and property damage, and as permitted in Paragraph 4(b).
d. Artifacts. The Grantor shall not disturb, collect, or relocate nor shall the
Grantor give permission to any third party, person or entity to disturb, collect, or relocate artifacts
on or from any portion of the Property without prior approval from the Co-Grantees and in
accordance with the Management Plan. The artifacts found on the Property may not be sold or
permanently conveyed to any private or public entity, except that upon written agreement between
Grantor and Co-Grantees, artifacts may be"donated (conveyed without monetary or other
compensation) to a qualified curation facilities, including but not limited to museums, libraries,
and historic societies. Artifacts located on the Property will be deemed common property of the
Grantor and Co-Grantees.
e. Mining.
6
(1) The exploration, mining, or extraction of minerals, oil, gas, or other
hydrocarbons, soils, sands, gravel, rock, or other materials on or below the surface of the Property
by Grantor is prohibited. Grantor, its heirs, successors, transferees or assigns shall not transfer,
lease or otherwise separate the soil, sand, gravel, rock, oil, natural gas, fuel or any other mineral
substance from the Property.
(2)Notwithstanding any of the foregoing to the contrary, soil, sand, gravel
or rock may be extracted upon written notice to but without further permission from Co-Grantees,
so long as such extraction is in accordance with the Management Plan. Any such extraction shall
be limited to an area less than one-half acre in size at any given time. Any area which is disturbed
by extraction must be re-vegetated and restored to a natural condition promptly after completion of
extraction.
f. Paving and Road and Trail Construction. No portion of the Property shall
be paved or otherwise covered with concrete, asphalt, nor any other paving material, nor any new
road or trail constructed without Co-Grantee's approval.
g. Trash. The dumping or accumulation of any kind of trash or refuse on the
Property, including but not limited to household trash and hazardous chemicals, is prohibited.
Limited dumping or accumulation of other farm-related trash and refuse produced on the Property
is permitted, provided that such dumping does not substantially diminish or impair the
Conservation Values, and is confined within a total area less than one-quarter acre in size at any
given time. This paragraph shall not be interpreted to prevent the storage of agricultural products
and by-products on the Property in accordance with all applicable government laws and
regulations.
•
h. Motorized Vehicles. Motorized use of vehicles within the Archeological
•
Area on the Property is prohibited. Off road vehicle courses for snowmobiles, all-terrain
vehicles, motorcycles, or other motorized vehicles are prohibited within the Archeological Area.
i. Commercial or Industrial Activity.
(1) No industrial uses shall be allowed on the Property.
(2)'Commercial uses are prohibited except in compliance with the
Management Plan and as approved by Co-Grantees pursuant to Paragraph
7, provided that such approval is based on a finding that such activities do
not significantly impact the Conservation Values of the Property, and those
that are consistent with the Purpose of this Easement. Any structure
associated with such commercial operations must be approved by
Co-Grantees, provided that such approval is based on a finding that such
activities do not significantly impact the Conservation Values of the
Property.
7
�7
j. Signage or Billboards. No signs or billboard shall be displayed or placed
on the Property, except as permitted by Paragraph 4(c).
6. Management Plan/ Research. To facilitate periodic communication between
Grantor and Co-Grantees about management issues that may impact the Conservation Values, the
Property shall be operated and managed in accordance with a"Management Plan"jointly prepared
by Grantor and Co-Grantees. The Management Plan, which plan shall be initially agreed upon
within one year of the date of this Easement and shall be reviewed at least every five years
thereafter and updated if any party determines an update is necessary. Research shall be designed
and carried out to ensure that the scientific, cultural, archeological, historical, and educational
material shall be preserved, and in accordance with the Management Plan and all applicable state,
federal, and local law.
7. Grantor Notice and Co-Grantees Approval. The purpose of requiring Grantor to
notify Co-Grantees prior to undertaking certain permitted activities is to afford Co-Grantees an
opportunity to ensure that the activities in question are designed and carried out in a manner
consistent with the Purpose of this Easement. Whenever notice is required, Grantor shall notify
Co-Grantees in writing not less than sixty (60) days prior to the date Grantor intends to undertake .
the activity in question. The notice shall describe the nature, scope, design, location, timetable,and
any other material aspect of the proposed activity in sufficient detail to permit Co-Grantees to
make an informed judgment as to its consistency with the Purpose of this Easement. Where
Co-Grantee's approval is required, Grantor shall not undertake the requested activity until Grantor
has received Co-Grantee's approval in writing. Co-Grantees shall grant or withhold its approval
in writing within sixty (60) days of receipt of Grantor's written request therefor and submittal of
sufficient supporting details as described above, and Co-Grantee's failure to approve Grantor's
proposed activities during such period of time shall constitute a withholding by Co-Grantees of
Co-Grantee's approval. Co-Grantee's approval may be withheld only upon Co-Grantee's
reasonable determination that the activity as proposed would substantially diminish or impair the
Conservation Values or would be inconsistent with the Purpose of this Easement.
8. Enforcement. If Co-Grantees finds what is believed to be a violation of this
Easement, Co-Grantees shall immediately notify Grantor in writing of the nature of the alleged
violation. Upon receipt of this written notice, Grantor shall either:
a. Restore the Property to its condition prior to the violation; or
b. Provide a written explanation to Co-Grantees of the reason why the alleged
violation should be permitted, in which event the parties agree to meet as soon as possible to
resolve their differences. If a resolution cannot be achieved at the meeting, the parties agree to
meet with a mutually acceptable mediator to attempt to resolve the dispute. Grantor shall
discontinue any activity that could increase or expand the alleged violation during the mediation
process. Should mediation fail to resolve the dispute, Co-Grantees may, at its discretion, take
appropriate legal action. When, in Co-Grantee's opinion, an ongoing or imminent violation could
irreversibly diminish or impair the Conservation Values, Co-Grantees may, take appropriate legal
8
process. Should mediation fail to resolve the dispute, Co-Grantees may, at its discretion, take
appropriate legal action. When, in Co-Grantee's opinion, an ongoing or imminent violation could
irreversibly diminish or impair the Conservation Values, Co-Grantees may, take appropriate legal
action without pursuing mediation. If a court with jurisdiction determines that a violation is
imminent, exists, or has occurred, Co-Grantees may get an injunction to stop such violation,
temporarily or permanently. A court may also issue an injunction to require Grantor to restore the
Property to its condition prior to the violation.
9. Costs of Enforcement. Any costs incurred by Co-Grantees in enforcing the terms of
this Easement against Grantor, including, without limitation, costs of suit and attorneys' fees, and
any costs of restoration necessitated by Grantor's violation of the terms of this Easement shall be
borne by Grantor. If Grantor prevails in any action to enforce the terms of this Easement,
Grantor's costs of suit, including, without limitation, attorneys' fees and expenses, shall be borne
by Co-Grantees.
10. No Waiver or Estoppel. Forbearance by Co-Grantees to exercise their rights under
this Easement in the event of a violation of any term shall not be deemed or construed to be a
waiver by Co-Grantees of such term or of any subsequent violation of the same or any other term
of this Easement or of any of Co-Grantee's rights under this Easement. No delay or omission by
Co-Grantees in the exercise of any right or remedy upon any violation by Grantor shall impair such
right or remedy or be construed as a waiver. Grantor hereby waives any defense of laches,
estoppel, or prescription, including the one year statute of limitations for commencing an action to
enforce the terms of a building restriction or to compel the removal of any building or
improvement because of the violation of the same under C.R.S. § 38-41-I 19, et seq.
I I. Acts Beyond Grantor's Control. Nothing contained in this Easement shall be
construed to entitle Co-Grantees to bring any action against Grantor for any injury to or change in
the Property resulting from causes beyond Grantor's control, including, without limitation, fire,
flood, storm, and earth movement, or from any prudent action taken by Grantor under emergency
conditions to prevent, abate, or mitigate significant injury to the Property resulting from such
causes. Notwithstanding the foregoing, the Grantor shall take reasonable efforts to prevent third
parties from performing, and shall not knowingly allow third parties to perform, any act on or
affecting the Property that is inconsistent with the Purpose of this Easement.
12. Access. The general public shall have access to the Property, subject to any
restrictions or regulations imposed in the Management Plan or as otherwise mutually agreed on by
the parties as necessary and appropriate to protect public health and safety(including closures
during construction, maintenance, or for emergency or administrative purposes),and to protect the
Property's scenic and natural Conservation Values (including seasonal closures).
13. Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs
and liabilities of any kind related to the ownership, operation,upkeep, and maintenance of the
Property, including weed control and eradication and including the maintenance of adequate
comprehensive general liability insurance coverage. Grantor shall keep the Property free of any
9
3g
liens arising out of any work performed for, materials furnished to, or obligations incurred by
Grantor.
14. Taxes. Grantor shall pay before delinquency all taxes, assessments, fees, and
charges of whatever description levied on or assessed against the Property by competent authority
(collectively"taxes"), including any taxes imposed upon, or incurred as a result of, this Easement,
and shall furnish Co-Grantees with satisfactory evidence of payment upon request.
•
15. Hold Harmless. Grantor shall hold harmless, indemnify, and defend Co-Grantees
and the members, directors, officers, employees, agents, and contractors and the heirs,
representatives, successors, and assigns of each of them (collectively`Indemnified Parties") from
and against all liabilities, penalties, costs, losses, 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 of any person, or physical damage to any
property, resulting from any act, omission, condition, or other matter related to or occurring on or
about the Property, regardless of cause, unless due solely to the negligence of any of the
Indemnified Parties; (2)the obligations specified in Paragraph 9 herein; and (3) the presence or
release of hazardous or toxic substances on, under or about the Property. For the purpose of this
paragraph, hazardous or toxic substances shall mean any hazardous or toxic substance that is
regulated under any federal, state or local law. Without limiting the foregoing, nothing in this
Easement shall be construed as giving rise to any right or ability in Co-Grantees, nor shall
Co-Grantees have any right or ability, to exercise physical or managerial control over the
day-to-day operations of the Property, or otherwise to become an operator with respect to the
Property within the meaning of The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
20. Notices. Any notice, demand, request, consent, approval, or communication that
either party is required to give to the other in writing shall be either served personally or sent by
first class mail, postage prepaid, addressed as follows:
To Grantor:
Jody Anthes and David A. Brown
2330 Bear Ridge Road
Basalt, Colorado 81621
To The County:
Pitkin County Board of County Commissioners
c/o Open Space and Trails Director
530 East Main Street
• Aspen, Colorado 81611
10
yo
To The Conservancy:
The Archeological Conservancy
5301 Central Avenue NE, Suite 902
Albuquerque, New Mexico 87108-1517
or to such other address as any party from time to time shall designate by written notice to the
other.
23. Grantor's Representations and Warranties. Grantor represents and warrants that,
to its knowledge and without duty of inquiry:
a. No substance defined, listed, or otherwise classified pursuant to any federal, state, or
local law, regulation or requirement as hazardous, toxic, polluting, or otherwise threatening to
human health or the environment exists or has been used or released on the Property;
b. There are not now any storage tanks located on the Property, and no underground
storage tanks have been removed from the Property in a manner not in compliance with applicable
laws, regulations and requirements;
c. Grantor and the Property are in compliance with all federal, state, and local laws,
regulations, and requirements applicable to the Property and its use, and there is no existing,
pending or threatened litigation in any way affecting, involving, or relating to the Property; and
d. Grantor has good and sufficient title to the Property and has lawful authority to grant
and convey this Easement, that any mortgages or liens on the Property are subordinate to the terms
of this Easement,and that Grantor shall warrant and forever defend title to the Easement against all
and every person or persons lawfully claiming by,through and under Grantor the whole or any part
thereof, except for rights-of-way, easements, restrictions, covenant and mineral reservations of
record.
24. Subsequent Liens on the Conservation Land. No provisions of this Easement shall
be construed as impairing the ability of Grantor to use the Property as collateral for subsequent
borrowing, provided that any mortgage or lien arising from such a borrowing shall be subordinate
to this Easement.
25. Recording. Co-Grantees shall record this instrument in a timely fashion in the
official records of each county in which the Property is situated,and may re-record it at any time as
may be required to preserve its rights in this Easement.
26. General Provisions.
II
/7/
•
a. Controlling Law. The interpretation and performance of this Easement
shall be governed by the laws of the State of Colorado.
b. Liberal Construction. Any general rule of construction to the contrary
•
notwithstanding, this Easement shall be liberally construed in favor of the grant to effect the
Purpose of this Easement and the policy and purpose of C.R.S. §38-30.5-101, et seq. If any
provision in this instrument is found to be ambiguous, an interpretation consistent with the Purpose
of this Easement that would render the provision valid shall be favored over any interpretation that
would render it invalid.
c. Severability. If any provision of this Easement, or the application thereof
to any person or circumstance, is found to be invalid, the remainder of the provisions of this
Easement, or the application of such provision to persons or circumstances other than those as to
which it is found to be invalid, as the case may be, shall not be affected thereby.
d. Entire Agreement. This instrument sets forth the entire agreement
between Grantor and Co-Grantees with respect to the Easement and supersedes all prior
discussions, negotiations, understandings, or agreements relating to the Easement, all of which are
merged herein.
f. Joint Obligation. The obligations imposed upon the Grantor and
Co-Grantees of this Easement shall be joint and several in the event that more than one entity or
individual holds either interest at any given time.
g. Non-Merger. This Easement shall not be interpreted as creating a right of
Co-Grantees to acquire fee simple title to the Property. Nonetheless, if Co-Grantees wish to
acquire fee title to the Property or any additional interest in the Property(such as a leasehold),
. Co-Grantees may do so.
h. Successors. The covenants, terms, conditions, and restrictions of this
Easement shall be binding upon, and inure to the benefit of, the parties hereto and their respective
personal representatives, heirs,successors,and assigns and shall continue as a servitude running in
perpetuity with the Property. With the prior written consent of Grantor and the County (which
consent shall not be unreasonably withheld) the Archeological Conservancy shall have the right to
transfer the easement created by this Deed and to assign its rights thereunder to any private
nonprofit organization that also has expertise in the conservation of archeological resources, and
that, at the time of transfer, is a qualified organization under § 170(h) of the IRC, and under
Colorado Revised Statutes §38-30.5-101, et seq., (a"Qualified Organization"), expressly agrees to
assume the responsibility imposed on Grantees by this Deed and agrees that the conservation
purposes that this Deed is to advance continue to be carried out. If Grantees desire to transfer
this Deed to a Qualified Organization having similar purposes as Grantees, but Grantor or the
County refuses to approve the transfer, a court with jurisdiction shall transfer this Deed to another
Qualified Organization having similar purposes and mission as Grantees and that agrees to assume
12
the responsibility of enforcing this Deed, provided that Grantor and the Board receive notice of
and an opportunity to participate in the court proceeding.
i. Termination of Rights and Obligations. Each party's rights and obligations
under this Easement terminate upon transfer of such party's interest in the Easement or the
Property, except that liability for acts or omissions occurring prior to transfer shall survive
transfer.
j. Captions. The captions in this instrument have been inserted solely for
convenience of reference and are not a part of this instrument and shall have no effect upon its
construction or interpretation.
k. No Third Party Beneficiaries. This Easement is entered into by and
between Grantor and Co-Grantees, and is solely for the benefit of Grantor, Co-Grantees, and their
respective successors and assigns for the purposes set forth herein, and does not create rights or
responsibilities in any third parties beyond Grantor and Co-Grantees.
Amendment. If circumstances arise under which an amendment to or
modification of this Easement or any of its exhibits would be appropriate, Grantor and
Co-Grantees may jointly amend this Easement so long as the amendment(a) is consistent with the
Conservation Values and Purpose of this Easement, (b) does not affect the perpetual duration of
the restrictions contained in this Easement, (c) does not affect the qualifications of this Easement
under any applicable laws, (d) complies with Co-Grantee's procedures and standards for
amendments (as such procedures and standards may be amended from time to time). Any
amendment must be in writing, signed by all parties, and recorded in the records of the Clerk and
Recorder of the county or counties in which the Property is located. Nothing in this paragraph
shall be construed as requiring Grantor or Co-Grantees to agree to any particular proposed
amendment.
m. Change of Conditions. A change in the potential economic value of any use
that is prohibited by or inconsistent with this Easement, or a change in any current or future uses of
neighboring properties, shall not constitute a change in conditions that makes it impossible for
continued use of the Property for conservation purposes and shall not constitute grounds for
terminating the Easement in whole or in part.
n. Authority to Execute. Each party represents to the other that such party
has full power and authority to execute, deliver, and perform this Easement, that the individual
executing this Easement on behalf of said party is,fully empowered and authorized to do so, and
that this Easement constitutes a valid and legally binding obligation of said party enforceable
against said party in accordance with its terms.
IN WITNESS WHEREOF,Grantor and Co-Grantees have executed this Easement as of the
day and year first above written.
13
y3
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOLLOW)
•
14
)77
ACCEPTED by CO-GRANTEES: '
The Archeological Conservancy,
A California nonprofit corporation,
`' 1 •
Ja es B. Walker
Vii President '
STATE OF NEW MEXICO )
) ss.
COUNTY OF Bernalillo
The foregoing instrument was acknowledged before me this23 day of August, 2013, by
J.,„,„g B tJ,tknr as Vice President of The Archeological Conservancy, California
nonprofit corporation.
WITNESS my hand and official seal. ��"�� n 1 1 /
[SEAL] uuF� �.
OFFICIAL SEAL Notary Public
1 NI TIONE E.JOSEPH My commission expires:n,30113
!{ NOTARY 1UILIFSTATE 9f EV �EXIEO
"`eiO• MY commnisn expires:, fl 30 13
BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, Colorado,
a body clorate and politic
�k�` /
By r , , ,fC7/ J``----,- p[
George Newin , Chairman x (I✓
SIA'IE OF COLORADO )
COUNTY OF PITKTN
The foregoing document was acknowledged before me on this day of June,2013, by
George Newman,Chairman of the BOARD OF COUNTY COMMISSIONERS OF PITKIN
COUNTY, Colorado,a body corporate and politic.
WITNESS my hand and official seal.
[SEAL]
Notary' Public
My commission expires:
. 15
yC
ACCEPTED by CO-GRANTEES:
The Archeological Conservancy,
a nonprofit corporation,
By: '
•
STATE OF COLORADO )
) ss.
COUNTY OF
The foregoing instrument was acknowledged before me this day of June, 2013, by
as Executive Director of The Archeological Conservancy, a
nonprofit corporation.
WITNESS my hand and official seal.
[SEAL]
Notary Public
My commission expires:
BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, Colorado,
a body c orate and politic
By: ♦: . A •
George Newman', Chairman
STATE OF COLORADO
)ss.
COUNTY OF PITKIN
The foregoing document was acknowledged before me on this \{} day of JpeP 2013, by
George Newman, Chairman of the BOARD OF COUNTY COMMISSIONERS OF PITKIN
COUNTY, Colorado, a body corporate and politic.
WITNESS my h`,4k pf cial seal. /�
[SEAL] %%One A. 9 iii f�lirt4if G( .
``max Na •.'.'....,off y�i' No Public
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�TqR _ My commission expires: My Commission Expires
August 4,2015
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GRANTOR
dtJtC
cif?
o Nkint5
STATE OF COLORADO
) ss.
COUNTY OF PITKIN
ll The forgoni�n_g�yw�a�s acknowledged before me thisQJo'day of u.S�' 2013 by
, )t)\ kvreVne5 •
•
Witness my hand and official seal
My Commission Expires
My commission expires: August 4,2015
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GRANTOR
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'jo-) 5 A. 64L:,:)
STATE OF COLORADO )
) ss.
COUNTY OF PITKIN )
The forgoing was acknowledged before me this9(1 day of /1,_J t,LS4 2013 by
'AV (J k . 'r703∎ATn •
Witness my hand and official seal
expires:
My Commission Expires
My commission ex
```Illllllll1, A�g�st 4, 2015
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EXHIBIT A TO DEED OF CONSERVATION EASEMENT
(Legal Description of Property)
y9'
•
LEGAL DESCRIPTION
The Land referred to herein is located in the County of Pitkin.State of Colorado.and described as
follows:
SECTION 36 PARCEL NO.7
A PARCEL OF LAND SITUATED IN THE N 1/2 OF SECTION 36,TOWNSHIP 8 SOUTH,RANGE
87 WEST OF THE 6TH PRINCIPAL MERIDIAN,BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS: •
•
BEGINNING AT THE NORTHEAST CORNER OF TILE NW 1/4 OF THE SW 1/4 OF SAID
SECTION 36,WHENCE THE WEST 1/4 CORNER OF SAID SECTION 36 BEARS'S89°59'25" W
1316.92 FEET;
THENCE FOLLOWING THE NORTH LINE OF SAID NW 1/4 OF THE SW 1/4 S89°59'25" W 397.59
FEET;
THENCE N 05°38' E 987.80 FEET;
THENCE 124.39 FEET ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF
305.00 FEET;
THENCE N 29°00' E 310.00 FEET;
THENCE 131.74 FEET ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF
148.00 FEET;
THENCE EAST 1038.32 FEET;
THENCE S 28°58'22" E 694.32 FEET;
THENCE S 45°52' W 222.00 FEET; .
THENCE S 41°59'16" W 483.36 FEET;
THENCE S 69°47'24" W 940.00 FEET TO THE POINT OF BEGINNING.
TOGETHER WITH TI IE EASEMENTS AS SET FOR'T'H IN DEED RECORDED IN BOOK 292 AT
PAGE 766.
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EXHIBIT B TO DEED OF CONSERVATION EASEMENT
(Map of Property)
107°3'50"W 107°3'40"\\' 107°3'30"W
Sopris Archaic
y - Archeological Preserve
m
u .
E n • ° - Archeological Area -
\\\
%
c \\
39°19'0"N- E AVA
II - \C� -39°19'0"N
I.
\
II \\ N
% Legend
A
% -Roads
iA i
II B .°Archeological Area Boundary
V $O� 117 l Conservation Easement Boundary,
K 4 - • Archeological Area Corner UTM Points
I! I
0
II i p�/II , . I / UTM Points Latitude Longitude
II 0'
II po' I ii A 39° 18'57.981" N 107°3'50.247" W
II �'
' i� B 39° 18'57.775" N 107°3'45.983" W
I) 4;'
/� C _ 39° 19' 1.133" N 1 107°3'42.807" W
II �/� D 39° 19'2.474" N 107°3'44.564" \C'
I
iJt E 39° 19'2.933" N 107°3'48.009" W
II ! F 39° 19'0.299" N 107°3'49.939" W
II %' I1131 Prnp..,.d∎:n rdmarr sv,in
11 *" NA IL I983_Siai rl'lan._C"Inrad" Central_FIP1 0502_Iert
39°18'50"N— II -ice
Fes' %'
-39°18'511"N
/
I I I
107°3'511"W 107°3'40"W- 107°3'30"W
0 130 2n0 520 780 1,0111
H H 1 1 I-1 Feel
EXHIBIT C TO DEED OF CONSERVATION EASEMENT
(Baseline Documentation Attestation)
•
S3
Baseline Condition Report
Solids Archaic Archeological Presen'e - August 23.2013
Owner Acknowledgement Statement
In compliance with §I.170-14(g)(5)(i)(D) of the Federal Tax Regulations, this Baseline
Condition Report, including text, maps, and photos, is an accurate representation of the Property
as of June 18, 2013, the date of the site assessment of the Property. The conservation values
' include native vegetation, wildlife habitat including important Rocky Mountain elk production
areas, scenic viewsheds, and historic preservation
. GRANTOR: l / D� (((/������� S 4e 4 3
Jody Ant}Zs ((( Date
(YL) J / iir ,---- 446/3
David Brown Date
•
GRANTEES: 15- a -- 13
Dale Will, Director Date
Pitkin County Open Space & Trails .
Q
A heological Conservancy 146.911 Date
e. , -Qcle -v-..A.Q___\x-4- "6\23 2 OV3
Page 13
. 5'4(
RECEPTION#: 602806, 08/26/2013 at
f`oNTRAC'I'# y7-2013 03:14:27 PM,
1 OF 4, R $0.00 Doc Code SUBORD DT
Janice K. Vos Caudill, Pitkin County, CO
JODY ANTHES and DAVID A. BROWN
DEED OF TRUST SUBORDINATION AGREEMENT
THIS DE D OF TRUST SUBORDINATION AGREEMENT, made this
76- day of U 1' A 2013, between Walter Wieben, an individual whose
address is: 625 Lari t Road, Silt, CO 816522("Lender"), and the. Board of County
Commissioners of Pitkin County, Colorado, a body corporate and politic, 530 E. Main
Street, Aspen, CO 81611 (the "County").
WITNESS ETH:
WHEREAS, Lender is the holder of that certain Deed of Trust dated October 11.
2011 granted by Jody Anthes and David A. Brown ("Borrower") in favor of Lender to
secure an indebtedness in the original principal amount $200,000.00 (Two Hundred
Thousand and 00/100 Dollars) (the"Deed of Trust"); ,
WHEREAS, the Deed of Trust created a lien on certain real property owned by
Borrower in Pitkin County, Colorado more particularly described in Exhibit A, attached
hereto and made part hereof("the Property");
WHEREAS, the Deed of Trust was recorded in the land records of Pitkin County,
Colorado on October 13, 2011 at Reception No. 583499;
WHEREAS, Borrower has agreed lu granito the`'County d Conservation
Easement (collectively the "Easement") restricting the use of the Property;
WHEREAS, a true and complete copy of the Easement has been provided to
Lender;
WHEREAS, the Easement, when granted and recorded shall constitute an interest
or charge upon the Property that is unconditionally prior and superior to the rights,
interests, liens, or charges of the Lender and Deed of Trust;
WHEREAS, the County has agreed to accept the grant of the Easement, subject to
the subordination or'discharge of all prior liens, Deed of Trusts, and other encumbrances
affecting the Property;
<j5
WHEREAS, the Easement in favor of the County shall unconditionally be
and remain at all times an interest or charge on the Property, prior and superior to the lien
or charge of the Deed of Trust; and
WHEREAS, Lender is willing to subordinate the lien of the Deed of Trust to the
Conservation Easement, which is recorded at Reception No. t O SOS , in the
records of the Pitkin County Clerk and Recorder.
NOW, THEREFORE, for $10 and other good and valuable consideration, the
receipt of which is hereby acknowledged, and intending to be legally bound hereby,
Lender and County agree as follows:
1. The Deed of Trust, and all of Lender's rights, interests, claims, remedies
and privileges under the Deed of Trust are, and at all times shall continue to be, subject
and subordinate in all respects to the Easement, with the same force and effect as if the
Easement had been executed, delivered and recorded prior to the execution and delivery
of the Deed of Trust.
2. If any action or proceeding is commenced by Lender for the foreclosure of
the Deed of Trust o'r the sale of all or part of the Property, the County will not be named
as a party therein, and the sale of the Property (or a portion thereof) in any such action or
proceeding shall be made subject to all rights of the County under the Easement.
3. If Lender shall become the owner of the Property by reason of the
foreclosure of the Deed of Trust or the acceptance of a Deed or Assignment in Lieu of
Foreclosure or otherwise, the Easement shall not be affected thereby, but shall continue
in full force and effect, and Lender shall abide by all of the terms, covenants and
conditions set forth in the Easement.
4. In all other respects the Deed of Trust shall remain in full force and effect.
Nothing contained herein shall be deemed to release or discharge any of the indebtedness
or other obligations,of Borrower to Lender contained in or secured by the Deed of Trust.
5. All notices, requests, demands, elections, consents, approvals and other
communications under this Agreement (each such communication, hereinafter, a
"notice") must be in writing and delivered by hand, by United States mail or by
commercial express courier service to Lender and the County at the following addresses
(or at any other address which Lender or the County may designate by notice from time
to time):
If to Lender: Walter Wieben
625 Lariot Road
Silt, CO 81652
If to County: Board of County Commissioners of Pitkin County
530 E. Main Street, 3rd Floor
Aspen, Colorado 81611
With Copies to: Pitkin County Attorney
530 E. Main Street, Ste. 302
Aspen, Colorado 81611
6. This Agreement shall be binding upon and inure to the benefit of Lender
and the County and their respective successors and assigns.
7. This Agreement may not be amended or modified except by an instrument
in writing executed by both parties.
8. This Agreement shall be construed and enforced in accordance with the
laws of the State of Colorado, and venue shall lie in Pitkin County.
9. This Agreement constitutes the full and final agreement between the
parties, and all prior and contemporaneous understandings of the parties are merged
herein.
10. This Agreement may be executed in duplicate original counterparts, each
of which shall have the same binding force and effect.
• IN WITNESS WHEREOF, Lender and the County have duly executed this
Agreement as of the date first above written.
By: (Jc747 tu;4 P—n
Name: Walter Wieben
Title: Lender
STATE OF COLORADO )
ss.:
COUNTY OF rk ` e
The foregoing instrument was acknowledged before me this I V. day of
I�kS�tSt , 2013 by ,Walter
Wieben as Lender on behalf of Jody Anthes and David A. Brown.
[SEAL] GAY bA- LW"r
Notary Public
My Commission Expires: 9I I Kd llp
AMIE TUCKER
NOTARY PUBLIC 4
STATE OF COLORADO S�J
NOTARY ID 20124058102
MY COMMISSION EXPIRES SEPT.18,201 f, '
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EXHIBIT A
LEGAL DESCRIPTION
The Land referred to in herein is located in the County of Pitkin,State of Colorado,and described as
follows:
SECTION 36 PARCEL NO. 7
A PARCEL OF LAND SITUATED IN THE N 1/2 OF SECTION 36,TOWNSHIPS SOUTH,RANGE
87 WEST OF THE 6TH PRINCIPAL MERIDIAN,BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
I3EGINNING AT THE NORTHEAST CORNER OF THE NW 1/4 OF THE SW 1/4 OF SAID
SECTION 36,WHENCE THE WEST 1/4 CORNER OF SAID SECTION 36 BEARS S89 05925"W
1316.92 FEET;
THENCE FOLLOWING THE NORTH LINE OF SAID NW 1/4 OF THE SW 1/4 S89°59'25"W 397.59
FEET;
THENCE N 05°38'E 987.80 FEET;
THENCE 124.39 FEET ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF
305.00 FEET;
THENCE N 29°00'E 310.00 FEET;
- THENCE 131.74 FEET ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF
148.00 FEET;
THENCE EAST 1038.32 FEET;
THENCE S 28°58'22"E 694.32 FEET;
THENCE S 45°52' W 222.00 FEET;
THENCE S 41°59'16"W 483.36 FEET;
THENCE S 69°4T24" W 940.00 FEET TO THE POINT OF BEGINNING.
TOGETHER WITH THE EASEMENTS AS SET FORTH IN DEED RECORDED IN BOOK 292 AT
PAGE 766.
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•