HomeMy WebLinkAboutbocc.ord.025.2013 CONTRACT
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ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
ACCEPTING THE CONVEYANCE OF THE CLEAR W RANCH CONSERVATION
EASEMENT
ORDINANCE NO. (9Qc-2013
RECITALS
1. The Voters of Pitkin County and the Pitkin County Commissioners established an
Open Space and Trails Fund for the purposes of preserving and providing open space
and trails resources, and established an Open Space and Trails Board of Trustees to
guide the expenditure of those funds.
2. The Open Space and Trails Program is charged with protecting agriculture, open space,
habitat, scenic view planes, and recreational routes on public lands.
3. The Clear W Ranch Conservation Easement is comprised of 272.7 acres and is located
along the Snowmass Creek and highly visible from Snowmass Creek Road. '
4. The Clear W Ranch is prepared to convey a conservation easement encumbering their
property to Pitkin County as the Grantee.
5. On October 17, 2013, the Pitkin County Open Space and Trails Board recommended
that the conservation easement for The Clear W Ranch property be accepted by the
BOCC and designated as an Open Space and Trails asset.
NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Pitkin
County, Colorado that:
1. The BOCC accepts a conservation easement in substantially the form attached hereto on
The Clear W Ranch property and designates the easement an Open Space and Trails
asset.
2. Upon approval of the form by the Open Space and Trails Director and County Attorney,
the Chair is authorized to execute the conservation easement.
RECEPTION#: 610483, 05/20/2014 at
01:12:43 PM,
1 OF 30, R $0.00 Doc Code ORDINANCE
Janice K. Vos Caudill, Pitkin County, CO
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IV RgDy ED. FIRST READ, AND SET FOR PUBLIC HEARING ON THE J DAY OF
NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE
ORDINANCE PUBLISHED IN THE ASPEN TIMES WEEKLY ON ip— a y , 2013.
NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE ORDINANCE POSTED
ON THE OFFICIAL PITKIN COUNTY WEBSITE POSTED ON THE OFFICIAL PITKIN
COUNTY WEBSITE ( www.aspenpitkin.com ) ON THE r°-' DAY
OF (}.F4j t y 2013.
A OPTED AFTER FINAL READING AND PUBLIC HEARING ON THE iU DAY OF
/ 2013.
PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE ASPEN
TIMES WEEKLY ON THE /Y DAY OF l Od.ewAxe✓ 2013.
POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE POSTED ON THE O FIE CIAL
PITKIN COUNTY WEBSITE ( www.aspenpitkin.com ) ON THE /5 DAY OF (//,elyc6er
2013.
AT EST: BOARD OF COUNTY COMMISSIONERS
BY _� /Jt AS . 1. ' By ,f.',
Jean: e Jones ' George Newman, Chair _
Dep y County Clerk
Date: ////713
/13
APPROVED AS TO FORM: MANAGER APPROVAL
'_
Johrt,E _���Attorney Jon Peacock, County Manager
i
Dale Will, Director
Open Space and Trails
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rr
r APPROVED BY BOCC
kt" h; f ON /6K-a).(lly
DEED OF CONSERVATION EASEMENT
(Clear W Ranch)
THIS DEED OF CONSERVATION EASEMENT (the "Conservation Easement") is made and
entered into this 1p±day of )2(Gek , 2014, between Clear W Ranch LLC, a Nevada
limited liability company ("Grantors'), and the BOARD OF COUNTY COMMISSIONERS OF
PITKIN COUNTY, COLORADO, a body corporate and politic ("Pitkin County" or
"Grantee").
The following exhibits are attached hereto:
Exhibit A: Property Legal Description
Exhibit B: Map of Property and Existing Roads and Trails
Exhibit C: Baseline Attestation
Exhibit D: Water Rights
RECITALS
WHEREAS, Grantor is the record owner of that certain real property located in Pitkin
County, Colorado, consisting of approximately 272.7 acres, known as Clear W Ranch, which is
more particularly described on Exhibit "A", and depicted on Exhibit `B", attached hereto and
made a part of this document by this reference, and which referred to in the Conservation
Easement as the "Property," attached hereto; and
WHEREAS, the Property consists of natural, ecological, open space, scenic and
agricultural values important to the Grantor and the Grantees, the residents of Pitkin County,
Colorado, and the people of the State of Colorado (the "Conservation Values"), and
preservation of these natural features and values will yield substantial public benefit; A
summary of the Conservation Values follows, and are further described in the Baseline
Documentation referenced in Paragraph 4, and attested to by Grantor and Grantee on Exhibit
"C":
Protection of relatively natural habitat of plants/ecosystems: The dominant plant
communities on the Property can be described as follows: 1,) Gambel oak dominated mixed
montane shrublands; 2.) Narrowleaf cottonwood — blue spruce/thinleaf alder riparian
woodland; 3.) Mountain big sagebrush shrublands; 4.) lower montane willow carrs; and 5.)
Non-native pasture grass hayfields. Plant communities with special conservation status
include sagebrush shrubland, riparian woodland, and wetlands associations designated as rare
and/or imperiled by the Colorado Natural Heritage Program. Gambel oak-alderleaf mountain
mahogany/elk sedge mixed mountain shrublands occurring on the Property are threatened
throughout their global range and vulnerable to extirpation in Colorado.
Protection of relatively natural habitat of fish and wildlife: The Property lies within
Rocky Mountain Elk winter and summer range. The Property provides valuable habitat for a
variety of wildlife species including: mule deer, bobcats, coyotes, long- and short-tailed
weasels, mountain lions, red fox, black bear, Townsend's big-eared bats (designated as rare)
and numerous other bat species, Neotropical migratory songbirds, red tailed hawks harriers,
American kestrels, and great blue herons.
Preservation of farmland and forest land. The Property contains 24.6+ acres of
subirrigated meadows.
Preservation of Open Space and Enjoyment. The Property is adjacent Snowmass Creek
Road (CR-11) which is travelled by thousand of visitors and residents on their way to
recreational opportunities on the White River national Forest and Snowmass Village. The
Property lies in close proximity to USFS and BLM lands and private land permanently
protected by conservation easements; and
WHEREAS, the conservation purposes of this Deed of Conservation Easement are
recognized by, and the grant of this Deed will serve, at least and without limitation, the
following clearly delineated governmental conservation policies:
- The Farmland Protection Policy Act., P.L. 97-98, 7 V.S.C. §§4201, et seq.,
whose purpose is "to minimize the extent to which Federal programs and policies contribute
to the unnecessary and irreversible conversion of farmland to nonagricultural uses, and to
assure that Federal programs are administered in a manner that, to the extent practicable,
will be compatible with State, unit of local government and private programs and policies to
protect farmland;"
- Colorado Revised Statutes §§35-3.5-1 01, which provides in part that "It is
the declared policy of the state of Colorado to conserve, protect, and encourage the
development and improvement of its agricultural land for the production of food and other
agricultural products.
Colorado Revised Statutes §§38-30.5-101, 102, et seq., providing 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 having wholesome environmental quality or life-sustaining
ecological diversity, ..."
- The Colorado Wildlife and Parks and Outdoor Recreation statutes, Colorado
Revised Statutes §§33-1-101, et seq. which provide 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."
- The Pitkin County Land Use Code which states that the preservation of wildlife
habitat, open space and agricultural operations conforms with Policies 2-120 (Scenic Quality),
2160 (Wildlife Management) and 2-240 (Compatibility with Agricultural Lands and
Operations), 2-280 (Compatibility with Public Lands); and
WHEREAS, the Property remains in a substantially undisturbed and natural state
which has been documented in an Baseline Inventory of the Property's Conservation Values,
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as described in Paragraph 4 below; and
WHEREAS, Grantor desires and intends to preserve and maintain the natural,
ecological, open space, scenic and agricultural values within and upon the Property, by
encumbering the Property in its entirety with this Conservation Easement for the use and
benefit of Grantees, pursuant to the provisions of Section 38-30.5-101, et seq., Colorado
Revised Statutes, which provide for maintenance of these values by the continuation of land
use patterns existing at the time of this grant including, without limitation, those patterns
relating to agricultural uses and such limited recreational uses as provided for in this
Conservation Easement and as may be allowed by Grantor from time to time; and
WHEREAS, Grantor, as owner of the Property, owns the affirmative rights to identify,
preserve and protect in perpetuity the natural, ecological, open space, scenic and agricultural
values and further intends, as owner of the Property, to convey to Grantees a conservation
easement, as defined in §38-30.5-101, et seq., Colorado Revised Statutes, together with the right
to preserve and protect the Conservation Values of the Property in perpetuity; and
WHEREAS, Grantee is a "qualified conservation organization" as defined by the Internal
Revenue Code, and by acceptance of this Conservation Easement, Grantee acknowledges its
commitment to honor the intentions of Grantor, as expressed herein, to preserve and protect in
perpetuity the Conservation Values of the Property for the benefit of this and future generations;
CONVEYANCE
NOW, THEREFORE, for and in consideration of the facts recited above and of the
mutual covenants contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby confessed and acknowledged, Grantor hereby grants and
conveys to Grantees, and their assigns, a perpetual conservation easement in gross, pursuant to
Section 38-30.5-101, et seq., Colorado Revised Statutes (the "Conservation Easement"), over,
across and upon the Property as legally described on Exhibit A and as shown on Exhibit B,
subject to the terms and conditions hereinafter set forth. Grantees hereby acknowledge, accept
without reservation and agree to be bound by the terms and conditions of this Conservation
Easement.
1. Purpose. It is the essential purpose of this Conservation Easement to preserve and
protect, in perpetuity of natural, ecological, open space, scenic and agricultural values of the
Property. To achieve this Purpose, Grantor intends to convey this Deed of Conservation
Easement to Grantee to ensure that the Conservation Values of Clear W Ranch will be preserved
and protected forever. Subject to the purpose of this Easement, Grantor and Grantee intend to
permit only uses of the Property which do not substantially diminish or impair the Property's
Conservation Values and to prevent any use of the Property that will substantially impair or
interfere with protecting the Property's Conservation Values. It is the intent of the Grantor to
preserve the Property in its scenic, natural, historic and open space condition to preserve the
open space character, wildlife habitat, and scenic qualities of the Property.
2. Grantee's Affirmative Rights. To accomplish the purposes of this Conservation
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Easement, the following affirmative rights are hereby granted to Grantee:
(A) To identify, preserve and protect in perpetuity, and in the event of
their degradation or destruction by prohibited acts, to compel the restoration of, the natural,
ecological, wildlife, open space and scenic features and values of the Property.
(B) To enter upon the Property at reasonable times, not less than once
a year, to inspect the Property thoroughly, to monitor Grantor's compliance with and otherwise
enforce the terms of this Easement Deed. Grantee shall provide Grantor at least 48 hours advance
notice prior to each visit to the Property by Grantee. Grantee's activities hereunder shall not
unreasonably interfere with the uses being made of the Property, consistent with this
Conservation Easement, at the time of such entry. Grantee shall also have the right of immediate
entry to the Property, if, in its sole judgment, such entry is necessary to prevent damage to or the
destruction of the Conservation Values protected by this Conservation Easement. The Grantor's
representatives shall have the right to accompany the Grantee's representatives at all times while
the latter are on the Property.
(C) To°enjoin any activity on, or use of, the Property which is
inconsistent with the terms and intent of this Conservation Easement and to enforce and compel
the restoration of such areas or features of the Property as may be damaged by such activities, as
set forth in Paragraph 20 of this document.
(D) To recommend to Grantor enhancement measures for the
Conservation Values of the Property, and, with the permission of Grantor, which permission may
be withheld in Grantor's sole discretion, to enter upon the Property to perform such enhancement
at Grantee's own expense or that of the Grantor, if the Grantor so chooses, at times which will
not unreasonably interfere with the uses being made of the Property. No obligation shall be
created or implied by this subparagraph (D) to require the Grantees to recommend or perform
any enhancement measures.
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3. Permitted and Prohibited Uses. The Property shall be used only for
conservation, wildlife habitat, agricultural, passive recreational uses, or other uses which are
permitted herein. Any other activity on or use of the Property inconsistent with the purpose of
this Easement, including the change, disturbance, alteration, or impairment of the relatively
natural habitat for plants, wildlife, or similar ecosystems within and upon the Property, except as
provided herein, is prohibited. Without limiting the generality of the foregoing, the following
activities and uses are permitted or prohibited as expressly provided below:
3.1 Subdivision. All partition, division, subdivision or de facto subdivision of title to
the Property, whether by physical or legal process, is prohibited. The Property shall
be conveyed only in its entirety.
3.2 Structures. The construction of any building or other structures or improvement,
as defined in paragraph 21.2 of this Conservation Easement, other than permitted
under the terms of this Conservation Easement, is prohibited.
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3.3 Agriculture. Grantor retains the right to use the Property for agricultural
production, or to permit others to use the Property for agricultural production,
including the production of crops, livestock, and livestock products. All agricultural
operations on the Property shall be conducted using sound management, and in a
manner not wasteful of range and soil resources, or detrimental to water quality and
conservation, stream banks, riparian habitat, wildlife habitat, and shall be conducted
in accordance with applicable law. Agricultural practices prohibited by the easement
include feed lots, tree farms and sod farms. Grantor may lease lands for permitted
agricultural uses. Grantor may utilize water rights appurtenant to the Property,
install, improve and operate irrigation systems, irrigate irrigable lands on the
Property.
3.4 Fences. Grantor may, but shall not be obligated to replace, repair or improve
existing fences on the Property and erect new fencing provided such new or replaced
fencing is consistent with then-current Colorado Division of Wildlife ("CDOW")
guidelines for fencing in a wildlife migration area and any applicable county
regulations, so as to permit the movement of wildlife across the Property. Any
disturbance to the Property that results from such fence maintenance or construction
shall be reseeded and restored to as close to its prior condition as possible.
3.5 Timber Harvesting. Except as restricted below, trees may be cut for firewood
used on the Property and for fence posts and poles used on the Property, and to
control insects and disease, and to control invasive non-native species in conformance
with any other land use regulation, and to prevent personal injury and property
damage from wildfire or other causes, as well as other safety issues. Dead trees may
also be cut for other uses on the Property, provided that some dead trees should be
left standing for wildlife and bird habitat. The cutting or removal of any trees or
vegetation within 300 feet of any active raptor nest during nesting season, or removal
of any crown trees or overstory vegetation within 300 feet of an active raptor nest at
any time, is prohibited. The cutting, removal or harvesting of trees, including clearing
land for cultivation, use of livestock, or commercial timber harvesting, is prohibited.
3.6 Mining. The mining or extraction of soil, sand, gravel, rock, oil, natural gas, fuel,
or any other mineral substance by Grantor is prohibited. Grantor shall retain
ownership of the minerals and minerals rights, including any ownership of the soil,
sand, gravel, rock, oil, natural gas, fuel, or any other mineral substance of any kind or
description (the "Minerals"), which Grantor owns at the time of granting of this
Easement in the same ownership of the Property itself and shall not sever such
Minerals from the ownership of the Property.
3.7 Trash. Storage of Vehicles. The dumping and uncontained accumulation of any
kind of trash or refuse on the Property is prohibited, except plant material associated
with ranch operations which can be composted and used for erosion control. The
storage, dumping, or other disposal of toxic or hazardous materials is prohibited. The
outside storage of abandoned or inoperative vehicles is prohibited. The outside
storage of trucks, motor homes, and vehicles larger than commercial automobiles
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(other than farm or other equipment used in connection with the maintenance of the
Property), for extended periods of time is prohibited.
3.8 Residential, Commercial or Industrial Activity; Nuisances. No residential,
commercial or industrial uses shall be allowed on the Property.
3.9 Paving and Road and Trail Construction. No new roads or trails may be
constructed without the prior written consent of the Grantee. The location of any road
or trail shall not diminish or impair the Conservation Values of the Property or
otherwise be inconsistent with this Deed. The parties acknowledge that roads have
been constructed on the Property prior to the date of this Deed of Conservation
Easement, which roads are shown on the attached Exhibit B. No portion of the
Property, including roads and trails, shall be paved or otherwise covered with
concrete, asphalt, or any other paving material.
3.10 Wildlife Habitat. With prior written notice to the Grantee, and subject to the
reasonable approval of Grantee, Grantor may make changes to the Property to
maintain, improve or enhance wildlife habitat (which may include construction of
small ponds or other minor water improvements) on the Property.
3.11 Wildfires. Naturally-caused wildfires may be allowed to burn with minimal or
no suppression.
3.12 Vegetation. The introduction by Grantor of any noxious weed as defined by the
Pitkin County Noxious Weed Management Plan and applicable state law anywhere
on the Property is prohibited. The introduction of non-native vegetation, other than
for agricultural uses, is prohibited. Efforts will be made to eradicate non-native
invasive vegetation on the Property. Noxious weeds (invasive, non-native species of
plants) will be managed in accordance with applicable state and local laws. Use of
herbicides to control noxious weeds is permissible, but should be done in a cautious
and discriminatory way to target just the selected plant populations.
3.13 Recreation. The Property may be used for passive and non-motorized
recreational uses such as horseback riding, hiking, bicycling, cross-country skiing,
fishing and camping. Occasional summer use by motorized vehicles of the existing
jeep road on the Property shown on Exhibit B shall be permitted. Hunting is
permitted as recommended by OST staff or DOW for range management purposes.
Golf courses, aircraft landing strips and facilities, motor-cross tracks and facilities,
and other intensive or commercial recreational uses of the Property are prohibited.
3.14 Wildcat Ranch Access Restriction. Neither Grantor or any other party in
interest in all or any part of Exhibit A or any guests, licensees or invitees therefrom
shall have any right to use Wildcat Ranch Association ("Wildcat HOA") roads for
ingress or egress to and from Wildcat Ranch or any other right to enter upon Wildcat
Ranch for any purpose. The foregoing access restrictions shall not apply to
emergency access by vehicles for fire protection, police, ambulance, mountain rescue
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or similar purposes. Such restriction is for the benefit of and may be enforced by the
Wildcat 1-IOA.
3.14 Off-Road Use of Motorized Vehicles. The use of motorized vehicles,
including snowmobiles, all terrain vehicles, and motorcycles, off the roads depicted
on Exhibit B is prohibited except for agricultural activities and property maintenance.
3.15 Leases. Grantor agrees not to enter into any lease or other agreement for all or a
portion of the Property unless such lease or other agreement includes reference to this
Easement, and unless such lessee or other party agrees in writing to comply with the
terms of this Easement. A copy of such agreement will be provided to the Grantee at
least 30 days prior to the beginning of the leasehold. Nonetheless, the Grantor shall
remain liable for compliance with all of the terms and conditions of this Easement.
3.16 Harassment of Wildlife. Harassment of wildlife on the Property by any means is
prohibited, including as a result of failure to control or restrain dogs. Unleashed
dogs, other than dogs involved in agricultural management, are prohibited.
3.17 Lighting. No exterior lighting shall be installed on the Property. Floodlighting
to highlight landscaping, buildings or other features of the Property are prohibited.
3.18 Utilities; Telecommunications. No additional above-ground utility lines shall be
permitted on the Property under any circumstances. The erection, construction,
installation, relocation or use of a communication facility, a telecommunication
facility, a network element or any other telecommunication facilities, equipment or
material that may be used for telecommunications or to provide such services, is
prohibited. Grantor and Grantee acknowledge that the existing abandoned above-
ground Holy Cross Energy electric line shall not be used. However, the line in place
(poles and wire) shall be permitted to remain.
3.19 Billboards. Billboards and commercial signs of any sort shall be prohibited on
the property.
4. Development Rights. Grantor hereby grants to Grantee all development rights, as
defined by paragraph 21.2, and the parties agree that such rights are terminated and
extinguished, and may not be used on or transferred off of the property to any other
property adjacent or otherwise.
5. Water Resources. Grantor shall not manipulate, divert, dam, pollute, drain, dredge, or
otherwise alter Snowmass Creek or other naturally-occurring streams, springs, lakes,
ponds, designated wetlands or other surface or subsurface water features on the Property
in a manner that degrades or destabilizes their natural banks or shorelines; except that
Grantor may take appropriate measures to restore Snowmass Creek, or to conduct
wetlands expansion, develop ponds within naturally-occurring drainages and along
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historic irrigation ditches, augmentation or banking, or both, as such activities may be
approved by Grantee and any other required permitting agencies.
The installation, maintenance, improvement and replacement of irrigation ditches,
pipelines, structures, systems and related equipment, and/or of stock ponds or water
features for enhancement of wildlife habitat or agricultural use of the Property, or both, is
permitted in compliance with all applicable regulations. Installation of ponds or water
features for other purposes must be approved by Grantee.
6. Water Rights. The Grantor has an adjudicated water right appurtenant to the Property
in the form of 3.3 c.f.s. out of the 10.51 c.f.s. decreed for the Lutz Ditch for irrigation
purposes by the Water Court in Civil Action No. 3082 on August 25, 1936, subject to
Wildcat Ranch Homeowners Association's deeded reversionary interest. The Lutz Ditch
crosses the Property. Meadow areas consisting of 24.6 acres, more or less, adjacent to
Snowmass Creek have been and are irrigated in part by sub-irrigation. Grantor has not
harvested any hay crop therefrom during its ownership and is unaware of any harvesting
of hay by its predecessors in title. Pursuant to Colorado Revised Statutes §38-30.5-102,
the Parties agree that it is reasonable that all water rights beneficially used on the
Property for farming, ranching and conservation purposes, as described in Exhibit "D"
are encumbered by this Easement ("Water Rights"). Grantor shall retain and reserve the
right to use any and all water and water rights beneficially used on the Property and all
ditches, headgates, springs, reservoirs, water allotments, water shares and stock
certificates, contracts, easements and rights of way associated therewith for use in present
and future agricultural production and for all other decreed uses on the Property, or for
other lawful uses sufficient to maintain the Conservation Values of the Property. Grantor
shall retain and reserve the right to use the Water Rights and shall not transfer, lease, sell,
abandon, or otherwise separate the Water Rights from title to the Property itself; provided
that Grantor may, with Grantee's and Wildcat Ranch Homeowners Association's
approval, transfer, lease for short term, or loan, such portion of the Water Rights that
Grantor demonstrates to Grantee's reasonable satisfaction are no longer necessary for
present agricultural production on the Property and that the Water Rights remaining on
the Property are sufficient to maintain the Property's Conservation Values. Such approval
will be given by Grantee only upon demonstration of a lack of present and future need of
a portion of the Water Rights for agricultural production and the use of a statutorily
recognized short term lease, agricultural loan or use of a trust agreement with the
Colorado Water Conservation Board or any other entity which may be authorized to hold
such lease, loan, or trust to augment minimum stream flows in the Roaring Fork River
basin rivers and streams. All of these vehicles or any other proposed loan or lease must
be capable of ultimately restoring the Water Rights to use on the property. Grantees will
assist Grantor with such permitted water leases or loans upon the request of the Grantor.
The foregoing notwithstanding, the Grantor agrees that any interest in any Water Rights
described in Exhibit D is quit claimed by this Conservation Easement as a part of the
Conservation Easement. The Grantor does not waive any right to remove hay from the
Property, at its option, in the future. Additionally, the Grantor agrees not to alter, impair
or restrict the sub-irrigation of the Property by its affirmative acts unless consented to by
Grantee. Wildcat Ranch Homeowners Association has a conditional water right to
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construct a 250 acre-foot reservoir on the Property, known as the Twin Pines Reservoir.
No easement has been granted by the Grantor or any of its predecessors in title to
construct a dam or reservoir on the Property. Grantor agrees that it will not sell the
Property or grant an easement for the construction of Twin Pines Reservoir on the
Property, or grant any right for any person or entity to enter the Property in connection
with the development of the Twin Pines Reservoir.
7. Reserved Rights. Grantor reserves to itself, and to its successors and assigns, all rights
accruing from its ownership of the Property, including the right to engage in or permit or
invite others, including the public, to engage in all uses of the Property that are not
expressly prohibited herein and are not inconsistent with the purpose of this Easement.
8. Right to Privacy. Grantor retains the right to privacy and the right to exclude any
member of the public from trespassing on the Property.
9. Grantee's Approval. Where Grantee's approval is required Grantee shall grant or
withhold its approval in writing within thirty (30) days of receipt of Grantor's written
request therefore in accordance with paragraph 18. Failure of Grantee to respond within
thirty (30) days shall be deemed approval of Grantor's request. Grantee's approval may
be withheld only upon a reasonable determination by Grantee that the action as proposed
would be inconsistent with the purpose of this Easement.
10. Representations and Warranties. Grantor (only for itself and not its assigns or
successors in interest) represents and warrants that, after reasonable investigation and to
the best of its actual current knowledge:
10.1 No substance defined, listed, or otherwise classified pursuant to any
federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or
otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to
human health or the environment exists or has been released, generated, treated, stored,
used, disposed of, deposited, abandoned, or transported in, on, from, or across the
Property.
10.2 There are not now any underground storage tanks located on the Property,
whether presently in service or closed, abandoned, or decommissioned, and no
underground storage tanks have been removed from the Property in a manner not in
compliance with applicable federal, state, and local laws, regulations, and requirements.
10.3 There is no pending litigation in any way affecting, involving, or relating
to the Property.
10.4 No civil or criminal proceedings or investigations have been instigated at
any time or are now pending, and no notices, claims, demands, or orders have been
received, arising out of any violation or alleged violation of, or failure to comply with,
any federal, state, or local law, regulation, or requirement applicable to the Property or its
use, nor do there exist any facts or circumstances that Grantor night reasonably expect to
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form the basis for any such proceedings, investigations, notices, claims, demands, or
orders.
10.5 Grantor (only and not its successor or assigns) warrants that Grantor has
good and sufficient title to the Property, subject to the exceptions described on the
attached Exhibit A, that Grantor has good right, full power and lawful authority to grant
and convey this Easement, and hereby promises to defend the same against all claims
from persons claiming by, through, or under Grantor. Grantor further warrants that there
are no mortgages or liens on the Property.
11. Enforcement. The Grantee shall have the right to prevent and correct or require
correction of violations of the terms and purposes of this Easement Deed. The Grantee
may enter the Property for the purpose of inspecting for violations in accordance with
Subparagraph 4.2 above. If the Grantee finds what it believes is a violation, or a threat of
a violation, the Grantee shall notify Grantor in writing of the nature of the alleged
violation. Upon receipt of this written notice, Grantor shall either: (1) restore the Property
as best possible to its condition prior to the violation in accordance with a plan approved
by the Grantee; or (2) provide a written explanation to Grantee of the reason why the
alleged violation should be permitted. If the Grantee is not satisfied with Grantor's
written explanation, all Parties agree to meet as soon as possible to resolve this
difference. If a resolution of this difference cannot be achieved at the meeting, all Parties
agree to meet with a mutually acceptable mediator to attempt to resolve the dispute
pursuant to Subparagraph 11.1 below.
Should mediation fail to resolve the dispute within sixty (60) days of Grantee written
notice to Grantor of the alleged violation, or by such other date as the Parties may
mutually agree, the Parties may take appropriate legal action pursuant to the Paragraphs
below, including seeking injunctive relief by ex parte means if necessary, to stop an
alleged violation. The exclusive venue for any such suit is in the County in which the
Property is located. The failure of Grantee to discover a violation or to take action shall
not waive any of the Grantee's rights, claims or interests in pursuing any such action at a
later date. Nothing in this conservation easement serves to waive any immunity at law,
including immunity granted under the Colorado Governmental Immunities Act, Section
24-10-101 et seq., C.R.S., or any other rights, protections, immunities, defenses or
limitations on liability provided by law, and subject to any applicable provisions of the
Colorado Constitution and applicable laws.
11.1 Mediation. If a dispute arises between the Parties concerning the
consistency of any proposed use or activity with the purpose of this Easement Deed, and
Grantor agrees not to proceed with the use or activity pending resolution of the dispute,
either party may refer the dispute to mediation by request made in writing upon the other.
Within ten (10) days of the receipt of such request, the Parties shall select a single trained
and impartial mediator with experience in Conservation Easement Deeds and other land
preservation tools. If the Parties are unable to agree on the selection of a single mediator,
then the Parties shall each select a trained and impartial mediator with experience in
Conservation Easement Deeds and other land preservation tools, and those two mediators
10
shall select a similarly skilled mediator who shall alone mediate the dispute. Mediation
shall then proceed in accordance with the following guidelines:
(a) Purpose. The purpose of the mediation is to: (1) promote discussion between
the Parties; (2) assist the Parties to develop and exchange pertinent information
concerning the issues in dispute; and (3) assist the Parties to develop proposals
that will enable them to arrive at a mutually acceptable resolution of the
controversy. The mediation is not intended to result in any express or de facto
modification or amendment of the terms, conditions, or restrictions of this
Easement Deed.
(b) Participation. The mediator may meet with the Parties and their counsel
jointly or ex parte. The Parties agree that they will participate in the mediation
process in good faith and expeditiously, attending all sessions scheduled by the
mediator, except in cases when the Grantee believes that Conservation Values are
continuing to be harmed during the mediation process in which case the Grantee
can suspend its involvement in the mediation to remedy this threat of ongoing
violation. Representatives of the Parties with settlement authority will attend
mediation sessions as required by the mediator.
(c) Confidentiality. All information presented to the mediator shall be deemed
confidential and shall be disclosed by the mediator only with the consent of the
Parties or their respective counsel. The mediator shall not be subject to subpoena
by any party in any subsequent litigation. No statements made or documents
prepared for mediation sessions shall be disclosed in any subsequent proceedings
or construed as an admission of a party.
(d) Time Period. Neither party shall be obligated to continue the mediation
process beyond a period of sixty (60) days from the date of receipt of the initial
request or if the mediator concludes that there is no reasonable likelihood that
continuing mediation will result in a mutually agreeable resolution of the dispute.
The Parties shall each bear 50% of the mediator's fees.
(e) Injunctive Relief. The Grantee may bring an action at law or in equity, ex
parte as necessary, in a court of competent jurisdiction, to enforce the terms of
this Easement Deed and to enjoin by temporary or permanent injunction a
violation, including to require or cause the restoration of the Property to the
condition that existed prior to the violation. The exclusive venue for such an
action is the county in which the Property is located.
11.2 Damages. The Grantee shall be entitled to recover damages for violation of
the terms of this Easement Deed or injury to the Conservation Values, including, without
limitation, damages for the loss of scenic, aesthetic, or environmental values. The
Grantee shall apply any damages recovered to the cost of undertaking any restorative,
remediative, corrective action on the Property. Nothing in this conservation easement
serves to waive any immunity at law, including immunity granted under the Colorado
11
Governmental Immunities Act, Section 24-10-101 et seq., C.R.S., or any other rights,
protections, immunities, defenses or limitations on liability provided by law, and subject
to any applicable provisions of the Colorado Constitution and applicable laws.
11.3. Emergency Enforcement. If the Grantee reasonably believes an ongoing or
threatened imminent activity violates the Easement Deed, the Grantee may, in their sole
discretion, take immediate legal action as set forth in this Paragraph without prior notice
to Grantor, without waiting for the period provided for cure to expire, and without
waiting for the 60 day mediation period to expire. The exclusive venue for any such suit
is in the County in which the Property is located.
11.4. Scope of Relief. The Grantee's rights under this Paragraph apply equally in
the event of either actual or threatened violations of the terms of this Easement Deed.
Grantor agrees that the Grantee's remedies at law for any violation of the terms of this
Easement Deed are inadequate and that the Grantee shall be entitled to the injunctive
relief described in Subparagraph 11.2, both prohibitive and mandatory, in addition to
such other relief to which the Grantee may be entitled, including specific performance of
the terms of this Easement Deed, without the necessity of proving either actual damages
or the inadequacy of otherwise available legal remedies. The Grantee's remedies
described in this Paragraph shall be cumulative and shall be in addition to all remedies
now or hereafter existing at law or in equity. Nothing in this conservation easement
serves to waive any immunity at law, including immunity granted under the Colorado
Governmental Immunities Act. Section 24-10-101 et seq., C.R.S., or any other rights,
protections, immunities, defenses or limitations on liability provided by law, and subject
to any applicable provisions of the Colorado Constitution and applicable laws.
11.5. Costs of Enforcement. All parties shall bear their own costs and attorneys'
fees in any enforcement action.
11.6 The Grantee's Discretion. Enforcement of the terms of this Easement Deed
shall be at the sole discretion of the Grantee, and any forbearance by the Grantee to
exercise their rights under this Easement Deed in the event of any breach of any term of
this Easement Deed by Grantor shall not be deemed Or construed to be a waiver by the
Grantee of such term or any subsequent breach of the same or any other term of this
Easement Deed or of any of the Grantee's rights under this Easement Deed. No delay or
omission by the Grantee in the exercise of any right or remedy upon any breach by
Grantor shall impair such right or remedy or be construed as a waiver.
11.7 Waiver of Certain Defenses. No action shall be commenced or maintained
to enforce the terms of any building restriction described in this Easement Deed, or to
compel the removal of any building or improvement, unless said action is commenced
within four (4) years from the date of the violation for which the action is sought to be
brought or maintained. To the extent that any defense available to Grantor pursuant to
C.R.S. §38-41-119 is inconsistent with the foregoing, Grantor waives that defense.
12
11.8 Acts Beyond Grantor's Control. Nothing contained in this Easement Deed
shall be construed to entitle the Grantee 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. Grantor is not responsible for acts of
third parties that Grantor could not reasonably have anticipated or prevented and who are
out of Grantor's control.
12. Costs, Liabilities, Taxes and Environmental Compliance.
12.1 Hold Harmless. The Grantor agrees to use its best faith efforts to hold the
Grantee harmless from liability 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 or in part to the negligence of the Grantee or any of
its agents; (2) the presence or release of hazardous or toxic substances on, under or about
the Property, unless due solely or in part to the negligence of the Grantee or any of its
agents, subject to the current constraints or limitations of Colo. Const. Art. XI, Section 1,
as amended from time to time, which constraints or limitations the County believes
currently prohibit it from adopting a strict obligation to hold harmless the Grantee.
Nothing contained herein waives or is intended to waive any protections that may be
applicable to the Grantor under the Governmental Immunity Act, Section 24-10-101 et
seq., C.R.S., or any other rights, protections, immunities, defenses or limitations on
liability provided by law, and subject to any applicable provisions of the Colorado
Constitution and applicable laws.
Without limiting the foregoing, nothing in this Deed shall be construed as giving rise to
any right or ability in the Grantee, nor shall the Grantee 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.
12.2 Costs, Legal Requirements and Liabilities. Grantor will retain 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 the maintenance of adequate liability insurance coverage, which names
the Grantee as an additional insured. Grantor remains solely responsible for obtaining
any applicable governmental permits and approvals for any construction or other activity
or use permitted by this Easement, and all such construction or other activity or use shall
be undertaken in accordance with all applicable federal, state, and local laws, regulations
and requirements. Grantor shall keep the Property free of any liens arising out of any
work performed for, materials furnished to, or obligations incurred by Grantor.
13
12.3 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 the Grantee with satisfactory
evidence of payment upon request. The Grantee is authorized, but in no event obligated,
to make or advance any payment of Taxes, upon ten (10) days prior written notice to
Grantor, in accordance with any bill, statement, or estimate procured from the appropriate
authority, without inquiry into the validity of the Taxes or the accuracy of the bill,
statement, or estimate, and the obligation created by such payment shall bear interest
until paid by Grantor to the Grantee at the lesser of fifteen percent (15%) per annum, or
the maximum rate allowed by law.
12.4 Remediation. If, at any time, there occurs, or has occurred, a release in, on,
or about the Property of any substance now or hereafter defined, listed, or otherwise
classified pursuant to any federal, state, or local law, regulation, or requirement as
hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any
way harmful or threatening to human health or the environment ("Release'), Grantor
agrees to take all steps necessary to assure its containment and remediation, including any
cleanup that may be required, unless the release was caused by the Grantee, in which case
the Grantee shall be responsible therefor.
12.5 Control. Nothing in this Grant shall be construed as giving rise, in the
absence of a judicial decree, to any right or ability in the Grantee to exercise physical or
managerial control over the day-to-day operations of the Property, or any of Grantor's
activities on 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 ("CERCLA"), and any Colorado state law counterpart.
13. Real Property Interest. This Easement constitutes a real property interest
immediately vested in the Grantee. The parties stipulate that this Easement has a fair
market value equal a proportion of the property value determined by dividing the value of
the Property encumbered by the Conservation Easement by the value of the Property
unencumbered by the Conservation Easement, based on an appraisal by mutually agreed
upon qualified appraiser. For the purposes of this Easement, the ratio of the value of the
Easement to the value of the Property as unencumbered by the Easement shall be as
determined by such appraisal.
14. Extinguishment and Condemnation.
14.1 Extinguishment. In granting this Easement, Grantor has considered the
possibility that uses prohibited by the terms of this Easement Deed may become more
economically valuable than permitted uses and that neighboring properties may be used
entirely for such prohibited uses in the future. It is the intent of the Grantor and the
Grantee that any such changes shall not be deemed circumstances justifying the
termination or extinguishment of this Easement Deed. In addition, the inability of
Grantor, or the Grantor's heirs, successors or assigns, to conduct or implement any or all
14
of the uses permitted under this Easement Deed, or the unprofitability of doing so, shall
not impair the validity of this Easement Deed or be considered grounds for its termination
or extinguishment.
If circumstances arise in the future that render the purposes of this Easement Deed
impossible to accomplish, this Easement Deed can only be terminated or extinguished,
whether in whole or in part, by judicial proceedings in a court of competent jurisdiction.
The exclusive venue for such a dispute is the county in which the Property is located.
Each party shall promptly notify the other in writing when it first learns of such
. circumstances. The amount of the proceeds to which the Grantee shall be entitled, after
the satisfaction of prior claims, from any sale, exchange, or involuntary conversion of all
or any portion of the Property subsequent to such termination or extinguishment, shall be
determined, unless otherwise provided by Colorado law at the time, in accordance with
this Paragraph 14. The Grantee shall use all such proceeds in a manner consistent with
the conservation purposes of this Easement Deed.
14.2 Condemnation. If all or any part of the Property is taken by exercise of the
power of eminent domain or acquired by purchase in lieu of condemnation, whether by
public, corporate, or other authority, so as to terminate this Easement, in whole or in part,
Grantor and the Grantee shall act jointly to recover the full value of the interests in the
Property subject to the taking or in-lieu purchase and all direct or incidental damages
resulting therefrom. All expenses reasonably incurred by Grantor and the Grantee in
connection with the taking or in-lieu purchase shall be paid out of the amount recovered.
The Grantee shall be entitled to compensation in accordance with applicable law from
any sale, exchange, condemnation, or other involuntary or voluntary conversion of all or
any portion of the Property subsequent to such taking or in-lieu purchase resulting in
termination or extinguishment. The Grantee's compensation shall be an amount equal to
the Easement value ratio described in Paragraph 13 above, multiplied by the amount of
the full proceeds from any sale, exchange, condemnation, or other involuntary or
voluntary conversion of all or a portion of the Property. The Grantee shall use its
proceeds, if any, in a manner consistent with the conservation purposes of this Easement.
14.3 Application of Proceeds. The Grantee shall use any proceeds received
under the circumstances described in this Paragraph, if any, in a manner consistent with
its conservation purposes, which are exemplified by this grant.
15. Assignment. This Easement is transferable, but the Grantee may assign its rights and
obligations under this Easement only to an organization that (a) is a qualified
organization at the time of transfer under Section 170(h) of the Internal Revenue Code of
1986, as amended (or any successor provision then applicable), and the applicable
regulations promulgated thereunder, (b) is authorized to acquire and hold conservation
easements under Colorado law, (c) agrees to assume the responsibility imposed on the
Grantee by this Easement. The Grantee shall provide the Grantor with a written request
to assign the Easement at least forty-five (45) days prior to the date of the assignment
transaction. The Grantor may disapprove of the transfer for any reason, including but not
limited to, the holder's desire to sell its interest in the Property.
15
16 Subsequent transfers. Grantor shall incorporate the terms and conditions of this
Easement in any deed or other legal instrument by which it divests itself of any interest in
all or a portion of the Property, except conveyance of a leasehold interest that is no longer
than one year in duration. Grantor further agrees to give written notice to the Grantee of
the transfer of any interest at least forty-five (45) days prior to the date of such transfer.
The failure of Grantor to perform any act required by this paragraph shall not impair the
validity of this Easement or limit its enforceability in any way.
17. Estoppel Certificates. Upon request by Grantor, The Grantee shall provide a
document or estoppel certificate to certify Grantor's compliance, if the same is
appropriate under the circumstances surrounding the request.
18. Notices. Any notice, demand, request, consent, approval, or communication that
either party desires or is required to give to the other shall be in writing and either served
personally or sent by first class mail, postage prepaid, addressed as follows or to such
other address as either party from time to time shall designate by written notice to the
other:
To Grantor:
Clear W Ranch LLC
Attn: James H. Clark, Manager
do CDL Family Office Services
505 S. Flagler Drive, Suite 900
West Palm Beach, FL 33401
With copy to:
Leonard M. Oates
Oates, Knezevich,Gardenswartz, Kelly & Morrow, P.C.
533 E. Hopkins Avenue, Third Floor
Aspen, CO 81611
To Grantee:
•
Pitkin County Board of County Commissioners
do Open Space and Trails
530 E. Main St., Ste 301
Aspen, Colorado 81611
Attention: Director
or to such other address as either party from time to time shall designate by written notice
to the other.
19. Recordation. The Grantee shall record this instrument in timely fashion in the
official records of Pitkin County, Colorado, and may re-record it at any time as may be
required to preserve its rights in this Easement Deed.
16
20. Amendment. If the circumstances arise under which an amendment to or
modification of this instrument would be appropriate, Grantor and the Grantee are free to
jointly amend this instrument; provided that no amendment shall be allowed that will
affect the qualifications of this instrument under any applicable laws. Any amendment
must be consistent with the conservation purposes of this instrument and may not affect
its perpetual duration. Any amendment must be in writing, signed by all Parties, and
recorded in the records of the Clerk and Recorder of Pitkin County, Colorado.
21. General Provisions.
21.1 Exhibits. The following Exhibits are attached to and incorporated by
reference into this conservation Easement Deed. Exhibit A: Property Legal Description,
Exhibit B: Map of the Property, Exhibit C: Baseline Attestation Exhibit D: Water
Rights
21.2 Definitions. The terms "Grantor" and "Grantee", wherever used herein,
and any pronouns used in place of those terms, shall be deemed to include, respectively,
Grantor and its heirs, personal representatives, executors, administrators, successors and
assigns, and the Grantee, their successors and assigns.
The term "Development" shall be deemed to include the carrying out of any building
activity, the making of any material change in the use or appearance of any structure or
land, or the subdividing of land into two (2) or more parcels,
A. Development includes, but is not limited to, the following:
B.
1. A reconstruction or alteration of the size or building footprint of a
structure.
2. A change in the intensity of use of land, such as the establishment of, or an
increase or decrease in, the number of dwelling units or floor area.
3. Commencement of drilling, mining, or excavation on a parcel of land.
4. Total demolition or partial demolition of a structure.
5. Clearing of land, including clearing or removal of vegetation, and
including any significant disturbance of vegetation or substrate (soil) manipulation.
6. Deposit of refuse, solid or liquid waste, or fill on a parcel of land.
7. The construction, installation and operation of oil and gas facilities,
facilities for logging, or facilities for mineral extraction.
B. For purposes of Scenic View Protection, "Development" shall be defined as any
construction, vegetation or grading activity that changes the basic character or use of
17
a parcel of land or that significantly alters the visibility of an existing use from the
Scenic View Protection Area map described in Sec. 7-20-120(b).
C. Development includes all other activity customarily associated with it. When
appropriate to the context, "development" refers to the act of developing or to the
result of the act of development. Reference to any specific operation is not intended
to mean that the operation or activity, when part of other operations or activities, is
not development. Reference to particular operations is not intended to limit the
generality of this definition.
D. The following shall not be considered development:
1. Fences and walls that comply with the Department of Wildlife fence
standards.
2. Fences and walls that are less than six (6) feet in height and are located:
a. On parcels assessed as "agricultural" by the Assessor's Office, or
b. On parcels free of 1041 wildlife concerns, or
c. Within an approved Activity Envelope, or
d. In areas of the County with site specific approvals or guidelines
approved the Board of County Commissioners relative to fencing.
The term "Structure" shall mean anything constructed, installed, or portable, that
requires location on the ground. It includes yurts and tepees and movable buildings that
can be used for housing, business, commercial, agricultural, or office purposes, either
temporarily or permanently. "Structure" also includes roads, walkways, paths, fences,
swimming pools, tennis courts, signs, sheds, and other accessory construction.
"Structures" do not include fences or walls used as fences as provided in subsection D of
the definition of "Development" within this section; poles, lines, cables, or other
transmission or distribution facilities of public utilities.
21.3 Controlling Law. The interpretation and performance of this Easement
Deed shall be governed by the laws of the State of Colorado.
•
21.4 Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Easement Deed shall be liberally construed in favor of the grant to
effect the purposes of the 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 purposes of the Easement that would render the provision valid shall
be favored over any interpretation that would render it invalid. The common law rules of
disfavoring restrictions on the use of real property and construing restrictions in favor of
the free and unrestricted use of real property shall not apply to interpretations of this
18
Easement Deed or to disputes between the Parties concerning the meaning of particular
provisions of this Easement Deed.
21.5 Severability. If any provision of this Easement Deed, or the application
thereof to any person or circumstance, is found to be invalid, the remainder of the
provisions of this Easement Deed, 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 be deemed severable and remain in full force and effect.
21.6 Entire Agreement. This instrument sets forth the entire agreement between
the Parties with respect to the Easement and supersedes all prior discussions,
negotiations, understandings, or agreements relating to the Easement, all of which are
merged herein.
21.7 No Forfeiture. Nothing contained herein will result in a forfeiture or
reversion of Grantor's title in any respect.
21.8 Joint Obligation. The obligations imposed by this Easement Deed upon
Grantor shall be joint and several (in the event that there is more than one Grantor).
21.9 Successors. The covenants, terms, conditions, and restrictions of this
Easement Deed 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, unless otherwise specified herein.
21.10 Termination of Rights and Obligations. A party's rights and obligations
under this Easement terminate upon transfer of the party's interest in the Easement or
Property, except that liability for acts or omissions occurring prior to transfer shall
survive transfer.
21.11 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 construction or interpretation.
21.12 No Third Party Beneficiaries. This Easement is entered into by and
between Grantor and the Grantee, and is solely for the benefit of Grantor, the Grantee,
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, the Grantee, and their
respective successors and assigns.
21.13 Counterparts. The Parties may execute this instrument in two or more
counterparts, which shall, in the aggregate, be signed by all Parties; each counterpart shall
be deemed an original instrument as against any party who has signed it. In the event of
any disparity between the counterparts produced, the recorded counterpart shall be
controlling.
19
21.14 Non-Merger: No merger shall be deemed to have occurred hereunder or under any
documents executed in the future affecting this Easement, unless the Parties expressly state
that they intend a merger of estates or interests to occur.
TO HAVE AND TO HOLD unto Grantee, its successors, and assigns forever.
IN WITNESS WHEREOF Grantor and Grantee have executed this Deed of Conservation
Easement on the day and year first above written.
GRANTOR:
Clear W Ranch, LLC
20
By : "`T �,_ , Date: 3/10 , 2014
Jeff Ru
STA1E OF ckGje.. )
t ss.
COUNTY OF1/0 w.
eich)
The foregoing document was acknowledged before me this day of 2014, by Jeff
Ruhl, as Manager of Clear W Ranch, LLC, as Grantor.
Witness my hand and official seal. M't RUREN RAMIRFZ
MY COMMISSION I FF089808
j EXPIRES:February 4,2018
My commission expires: ....:;/ BQM.QEaW Notary PgriQWkrrrko
Not 'u. ic
•
20
GRANTEE:
BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, Colorado,
a body yc -corporate and politic �r
By \�-6 /CA Date: 5/.6 , 2014
Rob Ittner
•
Title: Chair of the Board of County Commissioners of Pitkin County, Colorado
STATE OF COLORADO )
)ss.
COUNTY OF PITKIN )
The foregoing document was acknowledged before me this L day of /Y)p L!
2014, by Rob Ittner, as Chair of the BOARD OF COUNTY COMMISSIONERS OF PITKIN
COUNTY, Colorado, a body corporate and politic.
Witness my hand and official seal.
�7 /J
My commission expires: VI - C '!� �" 4QR* CO�``�
(41 01,14k
Notary Public i \G °
‘1STA1EOFGP-Ie
.._��
rim ua
21
EXHIBIT "A"
DESCRIPTION OF PROPERTY
Parcel 2, Clear W Ranch Exemption Plat recorded April 9, 2014 in Plat Book 106 at Page
72 as Reception No. 609316.
EXHIBIT "B"
MAP OF PROPERTY
24
EXHIBIT MAP OF: -I
j CLEAR W RANCH, CONSERVATION EASEMENT
A-PARLEC7T31-N66D UAI EU IN SLU IONS 21,23,1672/,34&35 •
TOWNSHIP 9 SOUTH,RANGE 86 WEST OF THE 6th P.M. °' •
COUNTY OF PITKIN,STATE OF COLORADO / •�
SHEET OF J
. cum mom mous mom mom moo um
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GRAPHIC SCALE _ I
• SOPRIS ENGINEERING-LLC ''.
CIVIL CONSULTANTS
501 MAIN STREET,SUITE AS
m _ CARBONDALE.COLORADO 81623
:•'.7e:A°"'° 19 701 704-0311 5OPRI5ENG®5OPRISENG COM
EXHIBIT "C"
BASELINE ATTESTATION
25
noseli r 1,n ftn WMn
Cbw,W'11w„b C n-nnie,Fianna fn.m,Y 1p,1011(m 3.29,20n1
ATTESTATION
Clear W Ranch Conservation Easement
Pitkin County, Colorado
•
In compliance with Section 1.170-14 of the Federal Tax Regulations, and to the best of
my knowledge, this Baseline Documentation Report, including text, maps, and
photographs, is an accurate representation of the Clear W Ranch conservation values
on the _ day of 20N the time of conveyance of the
conservation easement. The conservation values including native vegetation, _
important winter range, habitat connectivity, riparian areas, and other wildlife
habitat as well as scenic viewsheds and rural character.
i ,;c://
4/4/4-
Clear W Ranch,. C T'v / GRANTOR Date
6
vlw/ I
•
y/zz19
Dale Will,Pitkin County Open Space&Trails GRANTEE Dale
Director for the Pitkin County Board of County
Commissioners
Cnlnraau Wildlife Science LLC F
•
EXHIBIT "D"
WATER RIGHTS
I. 3.3 c.f.s. out of the 10.51 c.f.s. decreed for the Lutz Ditch for irrigation purposes by the Water Court in
Civil Action No.3082 on August 25, 1936.
26
•
RECEPTION#: 610484, 05/20/2014 at
01:12:44 PM,
1 OF 28, R $0.00 Doc Code DEED
CONSERV
Janice K. Vos Caudill, Pitkin County, CO
DEED OF CONSERVATION EASEMENT
(Clear W Ranch)
THIS DEED OF CONSERVATION EASEMENT (the "Conservation Easement") is made and
entered into this jp.`'day of NW-7N , 2014, between Clear W Ranch LLC, a Nevada
limited liability company ("Grantor), and the BOARD OF COUNTY COMMISSIONERS OF
PITKIN COUNTY, COLORADO, a body corporate and politic ("Pitkin County" or
"Grantee").
The following exhibits are attached hereto:
Exhibit A: Property Legal Description
Exhibit B: Map of Property and Existing Roads and Trails
Exhibit C: Baseline Attestation
Exhibit D: Water Rights
RECITALS
WHEREAS, Grantor is the record owner of that certain real property located in Pitkin
County, Colorado, consisting of approximately 272.7 acres, known as Clear W Ranch, which is
more particularly described on Exhibit "A", and depicted on Exhibit `B", attached hereto and
made a part of this document by this reference, and which referred to in the Conservation
Easement as the "Property,"attached hereto; and
WHEREAS, the Property consists of natural, ecological, open space, scenic and
agricultural values important to the Grantor and the Grantees, the residents of Pitkin County,
' Colorado, and the people of the State of Colorado (the "Conservation Values"), and
preservation of these natural features and values will yield substantial public benefit; A
summary of the Conservation Values follows, and are further described in the Baseline
Documentation referenced in Paragraph 4, and attested to by Grantor and Grantee on Exhibit
''C'':
Protection of relatively natural habitat of plants/ecosystems: The dominant plant
communities on the Property can be described as follows: 1,) Gambel oak dominated mixed
montane shrublands; 2.) Narrowleaf cottonwood — blue spruce/thinleaf alder riparian
woodland; 3.) Mountain big sagebrush shrublands; 4.) lower montane willow cars; and 5.)
Non-native pasture grass hayfields. Plant communities with special conservation status
include sagebrush shrubland, riparian woodland, and wetlands associations designated as rare
and/or imperiled by the Colorado Natural Heritage Program:- Gambetoak-alderleaf mountain
mahogany/elk sedge mixed mountain shrublands occurring on the Property are threatened
throughout their global range and vulnerable to extirpation in Colorado.
Protection of relatively natural habitat of fish and wildlife: The Property lies within
Rocky Mountain Elk winter and summer range. The Property provides valuable habitat for a
variety of wildlife species including: mule deer, bobcats, coyotes, long- and short-tailed
weasels, mountain lions, red fox, black bear, Townsend's big-eared bats (designated as rare)
1
2 and numerous other bat species, Neotropical migratory songbirds, red tailed hawks harriers,
American kestrels, and great blue herons.
Preservation of farmland and forest land. The Property contains 24.6+ acres of
subirrigated meadows.
Preservation of Open Space and Enjoyment. The Property is adjacent Snowmass Creek
Road (CR-11) which is travelled by thousand of visitors and residents on their way to
recreational opportunities on the White River national Forest and Snowmass Village. The
Property lies in close proximity to USFS and BLM lands and private land permanently
protected by conservation easements; and
WHEREAS, the conservation purposes of this Deed of Conservation Easement are
recognized by, and the grant of this Deed will serve, at least and without limitation, the
following clearly delineated governmental conservation policies:
The Farmland Protection Policy Act., P.L. 97-98, 7 V.S.C. §§4201, et seq.,
whose purpose is "to minimize the extent to which Federal programs and policies contribute
to the unnecessary and irreversible conversion of farmland to nonagricultural uses, and to
assure that Federal programs are administered in a manner that, to the extent practicable,
will be compatible with State, unit of local government and private programs and policies to
protect farmland;"
Colorado Revised Statutes §§35-3.5-1 01, which provides in part that "It is
the declared policy of the state of Colorado to conserve, protect, and encourage the
development and improvement of its agricultural land for the production of food and other
agricultural products.
Colorado Revised Statutes §§38-30.5-101, 102, et seg., providing 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 having wholesome environmental quality or life-sustaining
ecological diversity, ..."
The Colorado Wildlife and Parks and Outdoor Recreation statutes, Colorado
Revised Statutes §§33-1-101, et seq. which provide 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."
- The Pitkin County Land Use Code which states that the preservation of wildlife
habitat, open space and agricultural operations conforms with Policies 2-120 (Scenic Quality),
2160 (Wildlife Management) and 2-240 (Compatibility with Agricultural Lands and
Operations), 2-280 (Compatibility with Public Lands); and
WHEREAS, the Property remains in a substantially undisturbed and natural state
which has been documented in an Baseline Inventory of the Property's Conservation Values,
2
as described in Paragraph 4 below; and
WHEREAS, Grantor desires and intends to preserve and maintain the natural,
ecological, open space, scenic and agricultural values within and upon the Property, by
encumbering the Property in its entirety with this Conservation Easement for the use and
benefit of Grantees, pursuant to the provisions of Section 38-30.5-101, et seq., Colorado
Revised Statutes, which provide for maintenance of these values by the continuation of land
use patterns existing at the time of this grant including, without limitation, those patterns
relating to agricultural uses and such limited recreational uses as provided for in this
Conservation Easement and as may be allowed by Grantor from time to time; and
WHEREAS, Grantor, as owner of the Property, owns the affirmative rights to identify,
preserve and protect in perpetuity the natural, ecological, open space, scenic and agricultural
values and further intends, as owner of the Property, to convey to Grantees a conservation
easement, as defined in §38-30.5-101, et seq., Colorado Revised Statutes, together with the right
to preserve and protect the Conservation Values of the Property in perpetuity; and
WHEREAS, Grantee is a "qualified conservation organization" as defined by the Internal
Revenue Code, and by acceptance of this Conservation Easement, Grantee acknowledges its
commitment to honor the intentions of Grantor, as expressed herein, to preserve and protect in
perpetuity the Conservation Values of the Property for the benefit of this and future generations;
CONVEYANCE
NOW, THEREFORE, for and in consideration of the facts recited above and of the
mutual covenants contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby confessed and acknowledged, Grantor hereby grants and
conveys to Grantees, and their assigns, a perpetual conservation easement in gross, pursuant to
Section 38-30.5-101, et seq., Colorado Revised Statutes (the "Conservation Easement"), over;
- across and upon the Property as legally described on Exhibit A and as shown on Exhibit B,
subject to the terms and conditions hereinafter set forth. Grantees hereby acknowledge, accept
without reservation and agree to be bound by the terms and conditions of this Conservation
Easement.
1. Purpose. It is the essential purpose of this Conservation Easement to preserve and
protect, in perpetuity of natural, ecological, open space, scenic and agricultural values of the
Property. To achieve this Purpose, Grantor intends to convey this Deed of Conservation
Easement to Grantee to ensure that the Conservation Values of Clear W Ranch will be preserved
and protected forever.- Subject to the purpose of this Easement, Grantor and Grantee intend to
permit only uses of the Property which do not substantially diminish or impair the Property's
Conservation Values and to prevent any use of the Property that will substantially impair or
interfere with protecting the Property's Conservation Values. It is the intent of the Grantor to
preserve the Property in its scenic, natural, historic and open space condition to preserve the
open space character, wildlife habitat, and scenic qualities of the Property.
2. Grantee's Affirmative Rights. To accomplish the purposes of this Conservation
3
Easement, the following affirmative rights are hereby granted to Grantee:
(A) To identify, preserve and protect in perpetuity, and in the event of
their degradation or destruction by prohibited acts, to compel the restoration of, the natural,
ecological, wildlife, open space and scenic features and values of the Property.
(B) To enter upon the Property at reasonable times, not less than once
a year, to inspect the Property thoroughly, to monitor Grantor's compliance with and otherwise
enforce the terms of this Easement Deed. Grantee shall provide Grantor at least 48 hours advance
notice prior to each visit to the Property by Grantee. Grantee's activities hereunder shall not
unreasonably interfere with the uses being made of the Property, consistent with this
Conservation Easement, at the time of such entry. Grantee shall also have the right of immediate
entry to the Property, if, in its sole judgment, such entry is necessary to prevent damage to or the
destruction of the Conservation Values protected by this Conservation Easement. The Grantor's
representatives shall have the right to accompany the Grantee's representatives at all times while
the latter are on the Property.
(C) To enjoin any activity on, or use of, the Property which is
inconsistent with the terms and intent of this Conservation Easement and to enforce and compel
the restoration of such areas or features of the Property as may be damaged by such activities, as
set forth in Paragraph 20 of this document.
(D) To recommend to Grantor enhancement measures for the
Conservation Values of the Property, and, with the permission of Grantor, which permission may
be withheld in Grantor's sole discretion, to enter upon the Property to perform such enhancement
at Grantee's own expense or that of the Grantor, if the Grantor so chooses, at times which will
not unreasonably interfere with the uses being made of the Property. No obligation shall be
created or implied by this subparagraph (D) to require the Grantees to recommend or perform
any enhancement measures.
3. Permitted and Prohibited Uses. The Property shall be used only for
conservation, wildlife habitat, agricultural, passive recreational uses, or other uses which are
permitted herein. Any other activity on or use of the Property inconsistent with the purpose of
this Easement, including the change, disturbance, alteration, or impairment of the relatively
natural habitat for plants, wildlife, or similar ecosystems within and upon the Property, except as
provided herein, is prohibited. Without limiting the generality of the foregoing, the following
activities and uses are permitted or prohibited as expressly provided below:
- 3.1 Subdivision. All partition, division, subdivision or de facto subdivision of title to
the Property, whether by physical or legal process, is prohibited. The Property shall
be conveyed only in its entirety.
3.2 Structures. The construction of any building or other structures or improvement,
as defined in paragraph 21.2 of this Conservation Easement, other than permitted
under the terms of this Conservation Easement, is prohibited.
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3.3 Agriculture. Grantor retains the right to use the Property for agricultural
production, or to permit others to use the Property for agricultural production,
including the production of crops, livestock, and livestock products. All agricultural
operations on the Property shall be conducted using sound management, and in a
manner not wasteful of range and soil resources, or detrimental to water quality and
conservation, stream banks, riparian habitat, wildlife habitat, and shall be conducted
in accordance with applicable law. Agricultural practices prohibited by the easement
include feed lots, tree farms and sod farms. Grantor may lease lands for permitted
agricultural uses. Grantor may utilize water rights appurtenant to the Property,
install, improve and operate irrigation systems, irrigate irrigable lands on the
Property.
3.4 Fences. Grantor may, but shall not be obligated to replace, repair or improve
existing fences on the Property and erect new fencing provided such new or replaced
fencing is consistent with then-current Colorado Division of Wildlife ("CDOW")
guidelines for fencing in a wildlife migration area and any applicable county
regulations, so as to permit the movement of wildlife across the Property. Any
disturbance to the Property that results from such fence maintenance or construction
shall be reseeded and restored to as close to its prior condition as possible.
3.5 Timber Harvesting. Except as restricted below, trees may be cut for firewood
used on the Property and for fence posts and poles used on the Property, and to
control insects and disease, and to control invasive non-native species in conformance
with any other land use regulation, and to prevent personal injury and property
damage from wildfire or other causes, as well as other safety issues. Dead trees may
also be cut for other uses on the Property, provided that some dead trees should be
left standing for wildlife and bird habitat. The cutting or removal of any trees or
vegetation within 300 feet of any active raptor nest during nesting season, or removal
of any crown trees or overstory vegetation within 300 feet of an active raptor nest at
any time, is prohibited. The cutting, removal or harvesting of trees, including clearing
land for cultivation, use of livestock, or commercial timber harvesting, is prohibited.
3.6 Mining. The mining or extraction of soil, sand, gravel, rock, oil, natural gas, fuel,
or any other mineral substance by Grantor is prohibited. Grantor shall retain
ownership of the minerals and minerals rights, including any ownership of the soil,
sand, gravel, rock, oil, natural gas, fuel, or any other mineral substance of any kind or
description (the "Minerals"), which Grantor owns at the time of granting of this
Easement in the same ownership of the Property itself and shall not sever such
Minerals from the ownership of the Property. - - -- - - - - - -
3.7 Trash. Storage of Vehicles. The dumping and uncontained accumulation of any
kind of trash or refuse on the Property is prohibited, except plant material associated
with ranch operations which can be composted and used for erosion control. The
storage, dumping, or other disposal of toxic or hazardous materials is prohibited. The
outside storage of abandoned or inoperative vehicles is prohibited. The outside
storage of trucks, motor homes, and vehicles larger than commercial automobiles
5
(other than farm or other equipment used in connection with the maintenance of the
Property), for extended periods of time is prohibited.
3.8 Residential, Commercial or Industrial Activity; Nuisances. No residential,
commercial or industrial uses shall be allowed on the Property.
3.9 Paving and Road and Trail Construction. No new roads or trails may be
constructed without the prior written consent of the Grantee. The location of any road
or trail shall not diminish or impair the Conservation Values of the Property or
otherwise be inconsistent with this Deed. The parties acknowledge that roads have
been constructed on the Property prior to the date of this Deed of Conservation
Easement, which roads are shown on the attached Exhibit B. No portion of the
Property, including roads and trails, shall be paved or otherwise covered with
concrete, asphalt, or any other paving material.
3.10 Wildlife Habitat. With prior written notice to the Grantee, and subject to the
reasonable approval of Grantee, Grantor may make changes to the Property to
maintain, improve or enhance wildlife habitat (which may include construction of
small ponds or other minor water improvements) on the Property.
3.11 Wildfires. Naturally-caused wildfires may be allowed to burn with minimal or
no suppression.
3.12 Vegetation. The introduction by Grantor of any noxious weed as defined by the
Pitkin County Noxious Weed Management Plan and applicable state law anywhere
on the Property is prohibited. The introduction of non-native vegetation, other than
for agricultural uses, is prohibited. Efforts will be made to eradicate non-native
invasive vegetation on the Property. Noxious weeds (invasive, non-native species of
plants) will be managed in accordance with applicable state and local laws. Use of
herbicides to control noxious weeds is permissible, but should be done in a cautious
and discriminatory way to target just the selected plant populations.
3.13 Recreation. The Property may be used for passive and non-motorized
recreational uses such as horseback riding, hiking, bicycling, cross-country skiing,
fishing and camping. Occasional summer use by motorized vehicles of the existing
jeep road on the Property shown on Exhibit B shall be permitted. Hunting is
permitted as recommended by OST staff or DOW for range management purposes.
Golf courses, aircraft landing strips and facilities, motor-cross tracks and facilities,
and-other intensive-or commercial recreational-uses-of the Property-are-prohibited:------ - --
3.14 Wildcat Ranch Access Restriction. Neither Grantor or any other party in
interest in all or any part of Exhibit A or any guests, licensees or invitees therefrom
shall have any right to use Wildcat Ranch Association ("Wildcat HOA") roads for
ingress or egress to and from Wildcat Ranch or any other right to enter upon Wildcat
Ranch for any purpose. The foregoing access restrictions shall not apply to
emergency access by vehicles for fire protection, police, ambulance, mountain rescue
6
or similar purposes. Such restriction is for the benefit of and may be enforced by the
Wildcat HOA.
3.14 Off-Road Use of Motorized Vehicles. The use of motorized vehicles,
including snowmobiles, all terrain vehicles, and motorcycles, off the roads depicted
on Exhibit B is prohibited except for agricultural activities and property maintenance.
3.15 Leases. Grantor agrees not to enter into any lease or other agreement for all or a
portion of the Property unless such lease or other agreement includes reference to this
Easement, and unless such lessee or other party agrees in writing to comply with the
terms of this Easement. A copy of such agreement will be provided to the Grantee at
least 30 days prior to the beginning of the leasehold. Nonetheless, the Grantor shall
remain liable for compliance with all of the terms and conditions of this Easement.
3.16 Harassment of Wildlife. Harassment of wildlife on the Property by any means is
prohibited, including as a result of failure to control or restrain dogs. Unleashed
dogs, other than dogs involved in agricultural management, are prohibited.
3.17 Lighting. No exterior lighting shall be installed on the Property. Floodlighting
to highlight landscaping, buildings or other features of the Property are prohibited.
3.18 Utilities; Telecommunications. No additional above-ground utility lines shall be
permitted on the Property under any circumstances. The erection, construction,
installation, relocation or use of a communication facility, a telecommunication
facility, a network element or any other telecommunication facilities, equipment or
material that may be used for telecommunications or to provide such services, is
prohibited. Grantor and Grantee acknowledge that the existing abandoned above-
ground Holy Cross Energy electric line shall not be used. However, the line in place
(poles and wire) shall be permitted to remain.
3.19 Billboards. Billboards and commercial signs of any sort shall be prohibited on
the property.
4. Development Rights. Grantor hereby grants to Grantee all development rights, as
defined by paragraph 21.2, and the parties agree that such rights are terminated and
extinguished, and may not be used on or transferred off of the property to any other
property adjacent or otherwise.
5. Water Resources. Grantor shall not manipulate, divert, dam, pollute, drain, dredge, or
otherwise alter Snowmass Creek or other naturally-occurring streams, springs, lakes,
ponds, designated wetlands or other surface or subsurface water features on the Property
in a manner that degrades or destabilizes their natural banks or shorelines; except that
Grantor may take appropriate measures to restore Snowmass Creek, or to conduct
wetlands expansion, develop ponds within naturally-occurring drainages and along
7
historic irrigation ditches, augmentation or banking, or both, as such activities may be
approved by Grantee and any other required permitting agencies.
The installation, maintenance, improvement and replacement of irrigation ditches,
pipelines, structures, systems and related equipment, and/or of stock ponds or water
features for enhancement of wildlife habitat or agricultural use of the Property, or both, is
permitted in compliance with all applicable regulations. Installation of ponds or water
features for other purposes must be approved by Grantee.
6. Water Rights. The Grantor has an adjudicated water right appurtenant to the Property
in the form of 3.3 c.f.s. out of the 10.51 c.f.s. decreed for the Lutz Ditch for irrigation
purposes by the Water Court in Civil Action No. 3082 on August 25, 1936, subject to
Wildcat Ranch Homeowners Association's deeded reversionary interest. The Lutz Ditch
crosses the Property. Meadow areas consisting of 24.6 acres, more or less, adjacent to
Snowmass Creek have been and are irrigated in part by sub-irrigation. Grantor has not
harvested any hay crop therefrom during its ownership and is unaware of any harvesting
of hay by its predecessors in title. Pursuant to Colorado Revised Statutes §38-30.5-102,
the Parties agree that it is reasonable that all water rights beneficially used on the
Property for farming, ranching and conservation purposes, as described in Exhibit "D"
are encumbered by this Easement ("Water Rights"). Grantor shall retain and reserve the
right to use any and all water and water rights beneficially used on the Property and all
ditches, headgates, springs, reservoirs, water allotments, water shares and stock
certificates, contracts, easements and rights of way associated therewith for use in present
and future agricultural production and for all other decreed uses on the Property, or for
other lawful uses sufficient to maintain the Conservation Values of the Property. Grantor
shall retain and reserve the right to use the Water Rights and shall not transfer, lease, sell,
abandon, or otherwise separate the Water Rights from title to the Property itself; provided
that Grantor may, with Grantee's and Wildcat Ranch Homeowners Association's
approval, transfer, lease for short term, or loan, such portion of the Water Rights that
Grantor demonstrates to Grantee's reasonable satisfaction are no longer necessary for
present agricultural production on the Property and that the Water Rights remaining on
the Property are sufficient to maintain the Property's Conservation Values. Such approval
will be given by Grantee only upon demonstration of a lack of present and future need of
a portion of the Water Rights for agricultural production and the use of a statutorily
recognized short term lease, agricultural loan or use of a trust agreement with the
Colorado Water Conservation Board or any other entity which may be authorized to hold
such lease, loan, or trust to augment minimum stream flows in the Roaring Fork River
basin rivers and streams. All of these vehicles or any other proposed loan or lease must
be capable of ultimately restoring the-Water Rights to use on the property. Grantees will
assist Grantor with such permitted water leases or loans upon the request of the Grantor.
The foregoing notwithstanding, the Grantor agrees that any interest in any Water Rights .
described in Exhibit D is quit claimed by this Conservation Easement as a part of the
Conservation Easement. The Grantor does not waive any right to remove hay from the
Property, at its option, in the future. Additionally, the Grantor agrees not to alter, impair
or restrict the sub-irrigation of the Property by its affirmative acts unless consented to by
Grantee. Wildcat Ranch Homeowners Association has a conditional water right to
8
construct a 250 acre-foot reservoir on the Property, known as the Twin Pines Reservoir.
No easement has been granted by the Grantor or any of its predecessors in title to
construct a dam or reservoir on the Property. Grantor agrees that it will not sell the
Property or grant an easement for the construction of Twin Pines Reservoir on the
Property, or grant any right for any person or entity to enter the Property in connection
with the development of the Twin Pines Reservoir.
7. Reserved Rights. Grantor reserves to itself, and to its successors and assigns, all rights.
accruing from its ownership of the Property, including the right to engage in or permit or
invite others, including the public, to engage in all uses of the Property that are not
expressly prohibited herein and are not inconsistent with the purpose of this Easement.
8. Right to Privacy. Grantor retains the right to privacy and the right to exclude any
member of the public from trespassing on the Property.
9. Grantee's Approval. Where Grantee's approval is required Grantee shall grant or
withhold its approval in writing within thirty (30) days of receipt of Grantor's written
request therefore in accordance with paragraph 18. Failure of Grantee to respond within
thirty (30) days shall be deemed approval of Grantor's request. Grantee's approval may
be withheld only upon a reasonable determination by Grantee that the action as proposed
would be inconsistent with the purpose of this Easement.
10. Representations and Warranties. Grantor (only for itself and not its assigns or
successors in interest) represents and warrants that, after reasonable investigation and to
the best of its actual current knowledge:
10.1 No substance defined, listed, or otherwise classified pursuant to any
federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or
otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to
human health or the environment exists or has been released, generated, treated, stored,
used, disposed of, deposited, abandoned, or transported in, on, from, or across the
Property.
10.2 There are not now any underground storage tanks located on the Property,
whether presently in service or closed, abandoned, or decommissioned, and no
underground storage tanks have been removed from the Property in a manner not in
compliance with applicable federal, state, and local laws, regulations, and requirements.
10.3 There is no pending litigation in any way affecting, involving; or relating
to the Property.
10.4 No civil or criminal proceedings or investigations have been instigated at
any time or are now pending, and no notices, claims, demands, or orders have been
received, arising out of any violation or alleged violation of, or failure to comply with,
any federal, state, or local law, regulation, or requirement applicable to the Property or its
use, nor do there exist any facts or circumstances that Grantor might reasonably expect to
9
form the basis for any such proceedings, investigations, notices, claims, demands, or
orders.
10.5 Grantor (only and not its successor or assigns) warrants that Grantor has
good and sufficient title to the Property, subject to the exceptions described on the
attached Exhibit A, that Grantor has good right, full power and lawful authority to grant
and convey this Easement, and hereby promises to defend the same against all claims
from persons claiming by, through, or under Grantor. Grantor further warrants that there
are no mortgages or liens on the Property.
• 11. Enforcement. The Grantee shall have the right to prevent and correct or require
correction of violations of the terms and purposes of this Easement Deed. The Grantee
may enter the Property for the purpose of inspecting for violations in accordance with
Subparagraph 4.2 above. If the Grantee finds what it believes is a violation, or a threat of
a violation, the Grantee shall notify Grantor in writing of the nature of the alleged
violation. Upon receipt of this written notice, Grantor shall either: (1) restore the Property
as best possible to its condition prior to the violation in accordance with a plan approved
by the Grantee; or (2) provide a written explanation to Grantee of the reason why the
alleged violation should be permitted. If the Grantee is not satisfied with Grantor's
written explanation, all Parties agree to meet as soon as possible to resolve this
difference. If a resolution of this difference cannot be achieved at the meeting, all Parties
agree to meet with a mutually acceptable mediator to attempt to resolve the dispute
pursuant to Subparagraph 11.1 below.
Should mediation fail to resolve the dispute within sixty (60) days of Grantee written
notice to Grantor of the alleged violation, or by such other date as the Parties may
mutually agree, the Parties may take appropriate legal action pursuant to the Paragraphs
below, including seeking injunctive relief by a pane means if necessary, to stop an
alleged violation. The exclusive venue for any such suit is in the County in which the
Property is located. The failure of Grantee to discover a violation or to take action shall
not waive any of the Grantee's rights, claims or interests in pursuing any such action at a
later date. Nothing in this conservation easement serves to waive any immunity at law,
including immunity granted under the Colorado Governmental Immunities Act, Section
24-10-101 et seq., C.R.S., or any other rights, protections, immunities, defenses or
limitations on liability provided by law, and subject to any applicable provisions of the
Colorado Constitution and applicable laws.
11.1 Mediation. If a dispute arises between the Parties concerning the
consistency of any proposed use or activity with the purpose of this Easement Deed, and
Grantor agrees not to proceed with the use or activity pending resolution of the dispute,
either party may refer the dispute to mediation by request made in writing upon the other.
Within ten (10) days of the receipt of such request, the Parties shall select a single trained
and impartial mediator with experience in Conservation Easement Deeds and other land
preservation tools. If the Parties are unable to agree on the selection of a single mediator,
then the Parties shall each select a trained and impartial mediator with experience in
Conservation Easement Deeds and other land preservation tools, and those two mediators
t0
shall select a similarly skilled mediator who shall alone mediate the dispute. Mediation
shall then proceed in accordance with the following guidelines:
(a) Purpose. The purpose of the mediation is to: (1) promote discussion between
the Parties; (2) assist the Parties to develop and exchange pertinent information
concerning the issues in dispute; and (3) assist the Parties to develop proposals
that will enable them to arrive at a mutually acceptable resolution of the
controversy. The mediation is not intended to result in any express or de facto
modification or amendment of the terms, conditions, or restrictions of this
Easement Deed.
(b) Participation. The mediator may meet with the Parties and their counsel
jointly or ex parte. The Parties agree that they will participate in the mediation
process in good faith and expeditiously, attending all sessions scheduled by the
mediator, except in cases when the Grantee believes that Conservation Values are
continuing to be harmed during the mediation process in which case the Grantee
can suspend its involvement in the mediation to remedy this threat of ongoing
violation. Representatives of the Parties with settlement authority will attend
mediation sessions as required by the mediator.
(c) Confidentiality. All information presented to the mediator shall be deemed
confidential and shall be disclosed by the mediator only with the consent of the
Parties or their respective counsel. The mediator shall not be subject to subpoena
by any party in any subsequent litigation. No statements made or documents
prepared for mediation sessions shall be disclosed in any subsequent proceedings
or construed as an admission of a party.
(d) Time Period. Neither party shall be obligated to continue the mediation
process beyond a period of sixty (60) days from the date of receipt of the initial
request or if the mediator concludes that there is no reasonable likelihood that
continuing mediation will result in a mutually agreeable resolution of the dispute.
The Parties shall each bear 50% of the mediator's fees.
•
(e) Injunctive Relief. The Grantee may bring an action at law or in equity, ex
parte as necessary, in a court of competent jurisdiction, to enforce the terms of
this Easement Deed and to enjoin by temporary or permanent injunction a
violation, including to require or cause the restoration of the Property to the
condition that existed prior to the violation. The exclusive venue for such an
action is the county in which the Property is located.
11.2 Damages. The Grantee shall be entitled to recover damages for violation of
the terms of this Easement Deed or injury to the Conservation Values, including, without
limitation, damages for the loss of scenic, aesthetic, or environmental values. The
Grantee shall apply any damages recovered to the cost of undertaking any restorative,
remediative, corrective action on the Property. Nothing in this conservation easement
serves to waive any immunity at law, including immunity granted under the Colorado
II
Governmental Immunities Act, Section 24-10-101 et seq., C.R.S., or any other rights,
protections, immunities, defenses or limitations on liability provided by law, and subject
to any applicable provisions of the Colorado Constitution and applicable laws.
11.3. Emergency Enforcement. If the Grantee reasonably believes an ongoing or
threatened imminent activity violates the Easement Deed, the Grantee may, in their sole
discretion, take immediate legal action as set forth in this Paragraph without prior notice
to Grantor, without waiting for the period provided for cure to expire, and without
waiting for the 60 day mediation period to expire. The exclusive venue for any such suit
is in the County in which the Property is located.
11.4. Scope of Relief. The Grantee's rights under this Paragraph apply equally in
the event of either actual or threatened violations of the terms of this Easement Deed.
Grantor agrees that the Grantee's remedies at law for any violation of the terms of this
Easement Deed are inadequate and that the Grantee shall be entitled to the injunctive
relief described in Subparagraph 11.2, both prohibitive and mandatory, in addition to
such other relief to which the Grantee may be entitled, including specific performance of
the terms of this Easement Deed, without the necessity of proving either actual damages
or the inadequacy of otherwise available legal remedies. The Grantee's remedies
described in this Paragraph shall be cumulative and shall be in addition to all remedies
now or hereafter existing at law or in equity. Nothing in this conservation easement
serves to waive any immunity at law, including immunity granted under the Colorado
Governmental Immunities Act. Section 24-10-101 et seq., C.R.S., or any other rights,
protections, immunities, defenses or limitations on liability provided by law, and subject
to any applicable provisions of the Colorado Constitution and applicable laws.
11.5. Costs of Enforcement. All parties shall bear their own costs and attorneys'
fees in any enforcement action.
11.6 The Grantee's Discretion. Enforcement of the terms of this Easement Deed
shall be at the sole discretion of the Grantee, and any forbearance by the Grantee to
exercise their rights under this Easement Deed in the event of any breach of any term of
this Easement Deed by Grantor shall not be deemed Or construed to be a waiver by the
Grantee of such term or any subsequent breach of the same or any other term of this
Easement Deed or of any of the Grantee's rights under this Easement Deed. No delay or
omission by the Grantee in the exercise of any right or remedy upon any breach by
Grantor shall impair such right or remedy or be construed as a waiver.
11.7 Waiver of Certain Defenses. No action shall be commenced or maintained
to enforce the terms of any building restriction described in this Easement Deed, or to
compel the removal of any building or improvement, unless said action is commenced
within four (4) years from the date of the violation for which the action is sought to be
brought or maintained. To the extent that any defense available to Grantor pursuant to
C.R.S. §38-41-119 is inconsistent with the foregoing, Grantor waives that defense.
12
11.8 Acts Beyond Grantor's Control. Nothing contained in this Easement Deed
shall be construed to entitle the Grantee 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. Grantor is not responsible for acts of
third parties that Grantor could not reasonably have anticipated or prevented and who are
out of Grantor's control.
12. Costs, Liabilities, Taxes and Environmental Compliance.
12.1 Hold Harmless. The Grantor agrees to use its best faith efforts to hold the
Grantee harmless from liability 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 or in part to the negligence of the Grantee or any of
its agents; (2) the presence or release of hazardous or toxic substances on, under or about
the Property, unless due solely or in part to the negligence of the Grantee or any of its
agents, subject to the current constraints or limitations of Colo. Const. Art. XI, Section 1,
as amended from time to time, which constraints or limitations the County believes
currently prohibit it from adopting a strict obligation to hold harmless the Grantee.
Nothing contained herein waives or is intended to waive any protections that may be
applicable to the Grantor under the Governmental Immunity Act, Section 24-10-101 et
seq., C.R.S., or any other rights, protections, immunities, defenses or limitations on
liability provided by law, and subject to any applicable provisions of the Colorado
Constitution and applicable laws.
Without limiting the foregoing, nothing in this Deed shall be construed as giving rise to
any right or ability in the Grantee, nor shall the Grantee 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.
12.2 Costs, Legal Requirements and Liabilities. Grantor will retain 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 the maintenance of adequate liability insurance coverage, which names
the Grantee as an additional insured. Grantor remains solely responsible for obtaining
any applicable governmental permits and approvals for any construction or other activity
or use permitted by this Easement, and all such construction or other activity or use shall
be undertaken in accordance with all applicable federal, state, and local laws, regulations
and requirements. Grantor shall keep the Property free of any liens arising out of any
work performed for, materials furnished to, or obligations incurred by Grantor.
13
12.3 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 the Grantee with satisfactory
evidence of payment upon request. The Grantee is authorized, but in no event obligated,
•
to make or advance any payment of Taxes, upon ten (10) days prior written notice to
Grantor, in accordance with any bill, statement, or estimate procured from the appropriate
authority, without inquiry into the validity of the Taxes or the accuracy of the bill,
statement, or estimate, and the obligation created by such payment shall bear interest
until paid by Grantor to the Grantee at the lesser of fifteen percent (15%) per annum, or
the maximum rate allowed by law.
12.4 Remediation. If, at any time, there occurs, or has occurred, a release in, on,
or about the Property of any substance now or hereafter defined, listed, or otherwise
classified pursuant to any federal, state, or local law, regulation, or requirement as
hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any
way harmful or threatening to human health or the environment ("Release'), Grantor
agrees to take all steps necessary to assure its containment and remediation, including any
cleanup that may be required, unless the release was caused by the Grantee, in which case
the Grantee shall be responsible therefor.
12.5 Control. Nothing in this Grant shall be construed as giving rise, in the
absence of a judicial decree, to any right or ability in the Grantee to exercise physical or
managerial control over the day-to-day operations of the Property, or any of Grantor's
activities on 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 ("CERCLA"), and any Colorado state law counterpart.
13. Real Property Interest. This Easement constitutes a real property interest
immediately vested in the Grantee. The parties stipulate that this Easement has a fair
market value equal a proportion of the property value determined by dividing the value of
the Property encumbered by the Conservation Easement by the value of the Property
unencumbered by the Conservation Easement, based on an appraisal by mutually agreed
upon qualified appraiser. For the purposes of this Easement, the ratio of the value of the
Easement to the value of the Property as unencumbered by the Easement shall be as
determined by such appraisal.
14. Extinguishment and Condemnation.
14.1 Extinguishment. In granting this Easement, Grantor has considered the
possibility that uses prohibited by the terms of this Easement Deed may become more
economically valuable than permitted uses and that neighboring properties may be used
entirely for such prohibited uses in the future. It is the intent of the Grantor and the
Grantee that any such changes shall not be deemed circumstances justifying the
termination or extinguishment of this Easement Deed. In addition, the inability of
Grantor, or the Grantor's heirs, successors or assigns, to conduct or implement any or all
14
of the uses permitted under this Easement Deed, or the unprofitability of doing so, shall
not impair the validity of this Easement Deed or be considered grounds for its termination
or extinguishment.
If circumstances arise in the future that render the purposes of this Easement Deed
impossible to accomplish, this Easement Deed can only be terminated or extinguished,
whether in whole or in part, by judicial proceedings in a court of competent jurisdiction.
The exclusive venue for such a dispute is the county in which the Property is located.
Each party shall promptly notify the other in writing when it first learns of such
circumstances. The amount of the proceeds to which the Grantee shall be entitled, after
the satisfaction of prior claims, from any sale, exchange, or involuntary conversion of all
or any portion of the Property subsequent to such termination or extinguishment, shall be
determined, unless otherwise provided by Colorado law at the time, in accordance with
this Paragraph 14. The Grantee shall use all such proceeds in a manner consistent with
the conservation purposes of this Easement Deed.
14.2 Condemnation. If all or any part of the Property is taken by exercise of the
power of eminent domain or acquired by purchase in lieu of condemnation, whether by
public, corporate, or other authority, so as to terminate this Easement, in whole or in part,
Grantor and the Grantee shall act jointly to recover the full value of the interests in the
Property subject to the taking or in-lieu purchase and all direct or incidental damages
resulting therefrom. All expenses reasonably incurred by Grantor and the Grantee in
connection with the taking or in-lieu purchase shall be paid out of the amount recovered.
The Grantee shall be entitled to compensation in accordance with applicable law from
any sale, exchange, condemnation, or other involuntary or voluntary conversion of all or
any portion of the Property subsequent to such taking or in-lieu purchase resulting in
termination or extinguishment. The Grantee's compensation shall be an amount equal to
the Easement value ratio described in Paragraph 13 above, multiplied by the amount of
the full proceeds from any sale, exchange, condemnation, or other involuntary or
voluntary conversion of all or a portion of the Property. The Grantee shall use its
proceeds, if any, in a manner consistent with the conservation purposes of this Easement.
14.3 Application of Proceeds. The Grantee shall use any proceeds received
under the circumstances described in this Paragraph, if any, in a manner consistent with
its conservation purposes, which are exemplified by this grant.
15. Assignment. This Easement is transferable, but the Grantee may assign its rights and
obligations under this Easement only to an organization that (a) is a qualified
organization at the time of transfer under Section 170(h) of the Internal Revenue Code of
1986, as amended (or any successor provision then applicable), and the applicable
regulations promulgated thereunder, (b) is authorized to acquire and hold conservation
easements under Colorado law, (c) agrees to assume the responsibility imposed on the
Grantee by this Easement. The Grantee shall provide the Grantor with a written request
to assign the Easement at least forty-five (45) days prior to the date of the assignment
transaction. The Grantor may disapprove of the transfer for any reason, including but not
limited to, the holder's desire to sell its interest in the Property.
15
16 Subsequent transfers. Grantor shall incorporate the terms and conditions of this
Easement in any deed or other legal instrument by which it divests itself of any interest in
all or a portion of the Property,except conveyance of a leasehold interest that is no longer
than one year in duration. Grantor further agrees to give written notice to the Grantee of
the transfer of any interest at least forty-five (45) days prior to the date of such transfer.
The failure of Grantor to perform any act required by this paragraph shall not impair the
validity of this Easement or limit its enforceability in any way.
17. Estoppel Certificates. Upon request by Grantor, The Grantee shall provide a
document or estoppel certificate to certify Grantor's compliance, if the same is
appropriate under the circumstances surrounding the request.
18. Notices. Any notice, demand, request, consent, approval; or communication that
either party desires or is required to give to the other shall be in writing and either served
personally or sent by first class mail, postage prepaid, addressed as follows or to such
other address as either party from time to time shall designate by written notice to the
other:
To Grantor:
Clear W Ranch LLC
Attn: James H. Clark, Manager
c/o CDL Family Office Services
505 S. Flagler Drive, Suite 900
West Palm Beach, FL 33401
With copy to:
Leonard M. Oates
Oates, Knezevich,Gardenswartz, Kelly & Morrow, P.C.
533 E. Hopkins Avenue, Third Floor
Aspen, CO 81611
To Grantee:
Pitkin County Board of County Commissioners
do Open Space and Trails
530 E. Main St.; Ste 301
Aspen, Colorado 81611
Attention: Director
or to such other address as either party from time to time shall designate by written notice
to the other.
•
19. Recordation. The Grantee shall record this instrument in timely fashion in the
official records of Pitkin County, Colorado, and may re-record it at any time as may be
required to preserve its rights in this Easement Deed.
16
20. Amendment. If the circumstances arise under which an amendment to or
modification of this instrument would be appropriate, Grantor and the Grantee are free to
jointly amend this instrument; provided that no amendment shall be allowed that will
affect the qualifications of this instrument under any applicable laws. Any amendment
must be consistent with the conservation purposes of this instrument and may not affect
its perpetual duration. Any amendment must be in writing, signed by all Parties, and
recorded in the records of the Clerk and Recorder of Pitkin County, Colorado.
21. General Provisions.
21.1 Exhibits. The following Exhibits are attached to and incorporated by
reference into this conservation Easement Deed. Exhibit A: Property Legal Description,
Exhibit B: Map of the Property, Exhibit C: Baseline Attestation Exhibit D: Water
Rights
21.2 Definitions. The terms "Grantor" and "Grantee", wherever used herein,
and any pronouns used in place of those terms, shall be deemed to include, respectively,
Grantor and its heirs, personal representatives, executors, administrators, successors and
assigns, and the Grantee, their successors and assigns.
The term "Development" shall be deemed to include the carrying out of any building
activity, the making of any material change in the use or appearance of any structure or
land, or the subdividing of land into two (2) or more parcels,
A. Development includes, but is not limited to, the following:
B.
1. A reconstruction or alteration of the size or building footprint of a
structure.
2. A change in the intensity of use of land, such as the establishment of, or an
increase or decrease in, the number of dwelling units or floor area.
3. Commencement of drilling, mining, or excavation on a parcel of land.
4. Total demolition or partial demolition of a structure.
5. Clearing of land, including clearing or removal of vegetation, and
including any significant disturbance of vegetation or substrate (soil) manipulation.
6. Deposit of refuse, solid or liquid waste, or fill on a parcel of land.
7. The construction, installation and operation of oil and gas facilities,
facilities for logging, or facilities for mineral extraction.
B. For purposes of Scenic View Protection, "Development" shall be defined as any
construction, vegetation or grading activity that changes the basic character or use of
17
a parcel of land or that significantly alters the visibility of an existing use from the
Scenic View Protection Area map described in Sec. 7-20-120(b).
C. Development includes all other activity customarily associated with it. When
appropriate to the context, "development" refers to the act of developing or to the
result of the act of development. Reference to any specific operation is not intended
to mean that the operation or activity, when part of other operations or activities, is
not development. Reference to particular operations is not intended to limit the
generality of this definition.
D. The following shall not be considered development:
1. Fences and walls that comply with the Department of Wildlife fence
standards.
2. Fences and walls that are less than six (6) feet in height and are located:
a. On parcels assessed as "agricultural" by the Assessor's Office, or
b. On parcels free of 1041 wildlife concerns, or
c. Within an approved Activity Envelope, or
d. In areas of the County with site specific approvals or guidelines
approved the Board of County Commissioners relative to fencing.
The term "Structure" shall mean anything constructed, installed, or portable, that
requires location on the ground. It includes yurts and tepees and movable buildings that
can be used for housing, business, commercial, agricultural, or office purposes, either
temporarily or permanently. "Structure" also includes roads, walkways, paths, fences,
swimming pools, tennis courts, signs, sheds, and other accessory construction.
"Structures" do not include fences or walls used as fences as provided in subsection D of
the definition of "Development" within this section; poles, lines, cables, or other
transmission or distribution facilities of public utilities.
21.3 Controlling Law. The interpretation and performance of this Easement
Deed shall be governed by the laws of the State of Colorado.
21.4 Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Easement Deed shall be liberally construed in favor of the grant to
effect the purposes of the 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 purposes of the Easement that would render the provision valid shall
be favored over any interpretation that would render it invalid. The common law rules of
disfavoring restrictions on the use of real property and construing restrictions in favor of
the free and unrestricted use of real property shall not apply to interpretations of this
18
Easement Deed or to disputes between the Parties concerning the meaning of particular
provisions of this Easement Deed.
21.5 Severability. If any provision of this Easement Deed, or the application
thereof to any person or circumstance, is found to be invalid, the remainder of the
provisions of this Easement Deed, 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 be deemed severable and remain in full force and effect.
21.6 Entire Agreement. This instrument sets forth the entire agreement between
the Parties with respect to the Easement and supersedes all prior discussions,
negotiations, understandings, or agreements relating to the Easement, all of which are
merged herein.
21.7 No Forfeiture. Nothing contained herein will result in a forfeiture or
reversion of Grantor's title in any respect.
21.8 Joint Obligation. The obligations imposed by this Easement Deed upon
Grantor shall be joint and several (in the event that there is more than one Grantor).
21.9 Successors. The covenants, terms, conditions, and restrictions of this
Easement Deed 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, unless otherwise specified herein.
21.10 Termination of Rights and Obligations. A party's rights and obligations
under this Easement terminate upon transfer of the party's interest in the Easement or
Property, except that liability for acts or omissions occurring prior to transfer shall
survive transfer.
21.11 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 construction or interpretation.
21.12 No Third Party Beneficiaries. This Easement is entered into by and
between Grantor and the Grantee, and is solely for the benefit of Grantor, the Grantee,
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, the Grantee, and their
respective successors and assigns.
21.13 Counterparts. The Parties may execute this instrument in two or more
counterparts, which shall, in the aggregate, be signed by all Parties; each counterpart shall
be deemed an original instrument as against any party who has signed it. In the event of
any disparity between the counterparts produced, the recorded counterpart shall be
controlling.
19
21.14 Non-Merger:No merger shall be deemed to have occurred hereunder or under any
documents executed in the future affecting this Easement, unless the Parties expressly state
that they intend a merger of estates or interests to occur.
TO HAVE AND TO HOLD unto Grantee, its successors, and assigns forever.
IN WITNESS WHEREOF Grantor and Grantee have executed this Deed of Conservation
Easement on the day and year first above written.
GRANTOR:
Clear W Ranch, LLC
20
/
By : r I , Date: SAO , 2014
Jeff Au, , ? :Hager
STATE OF ckccja.-- )
t )ss.
COUNTY OFPcx\v-Cbea...e,h)
The foregoing document was acknowledged before me this /6 day of 2014, by Jeff
Ruhl, as Manager of Clear W Ranch, LLC, as Grantor.
Witness my hand and official seal. e....7 2 RUBEN RMgq¢
Y: :r MY COMPASSION FFotmeos
My commission expires: s'•.,..
EXPIRES:February 4,2018
Not>ru• is
•
20
GRANTEE:
BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, Colorado,
a body corporate and politic
yc
By \L-e�G- /C / S Date: 5/.e , 2014
Rob Ittner
Title: Chair of the Board of County Commissioners of Pitkin County, Colorado
STATE OF COLORADO )
)ss.
COUNTY OF PITKIN )
The foregoing document was acknowledged before me this (LL"day of /Y)/� y ,
2014, by Rob Ittner, as Chair of the BOARD OF COUNTY COMMISSIONERS OF PITKIN
COUNTY, Colorado, a body corporate and politic.
Witness my hand and official seal.
r/ `/ RISC °+,
My commission expires: ! - / C `/ 1' =�t��.•••••,O. I
Notary Public i f.• o
++'•STATE OF CrO e
21
EXHIBIT "A"
DESCRIPTION OF PROPERTY
Parcel 2, Clear W Ranch Exemption Plat recorded April 9, 2014 in Plat Book 106 at Page
72 as Reception No. 609316.
EXHIBIT `B"
MAP OF PROPERTY
24
1
-- -- - —
EXHIBIT MAP OF:
CLEAR W RANCH, CONSERVATION EASEMENT
A PARCEL OF LAND SI I UAI ED IN SECT IONS 21,13,16,27,34&3S •
TOWNSHIP 9 SOUTH,RANGE 86 WEST OF THE 6th P.M. I �".
COUNTY OF PITKIN,STATE OF COLORADO �i.
SHEET E OF I I(:
1 WAWA.MAT umani ADM WAIT cora am. um
ct no /i 1 unv it _ m
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Y1 GRAPHIC i
SOPRIS ENGINEERING-LLC
UVIL CONSULTANTS
SO2 MAIN STREET,SURE 43 '
CARBONDALE,COLORADO 81623
®� °�°
19701704-0311 5OPRISENG @SOPRISENG.COM
EXHIBIT "C"
BASELINE ATTESTATION
25
•
Iw,,.b.,lenen,Wpan
Clem-I'it,nA Ca,mans,iim,mre: • /nil.20,7011(m 119.201 n,
ATTESTATION
Clear W Ranch Conservation Easement
Pitkin County, Colorado
In compliance with Section 1.170-14 of the Federal Tax Regulations, and to the best of
my knowledge, this Baseline Documentation Report, including text, maps, and
photographs, is an accurate representation of the Clear W Ranch conservation values
on the _ day of , 20 the time of conveyance of the
conservation easement. The conservation values including native vegetation,
important winter range, habitat connectivity, riparian areas, and other wildlife
habitat as well as scenic viewsheds and rural character.
i
Clear W Ranch, C ' / GRANTOR Date •
Li7Z)/
• Dale Will,Pitkin County Open Space S(Trails GRANTEE Date/
Director for the Pitkin County Board of County
Commissioners
•
•
Colorado Wildli fc Science LLC
•
EXHIBIT"D"
WATER RIGHTS
1. 3.3 c.f.s. out of the 10.51 c.f.s. decreed for the Lutz Ditch for irrigation purposes by the Water Court in
Civil Action No. 3082 on August 25, 1936.
26