HomeMy WebLinkAboutbocc.ord.036-2020Contract No. 193.2020
AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN
COUNTY, COLORADO=ACCEPTING A CONSERVATION EASEMENT FROM THE
ASPEN CONSOLIDATED SANITATION DISTRICT
ORDINANCE NO. 036 - 2020
RECITALS
1. Pursuant to C.R.S. § 30-35-301, the Board of County Commissioners of Pitkin
County, Colorado (the BOCC"), a Home Rule County, is authorized to make and publish
ordinances for carrying into effect or discharging the powers and duties conferred upon such
counties by law and as seems necessary.
2 Pursuant to Section 2.8.1 of the Pitkin County Home Rule Charter, the Board of
County Commissioners of the County of Pitkin, Colorado is authorized to take official action by
Ordinance for certain matters as set forth in the Home Rule Charter as well as the Colorado Revised
Statues as amended.
3. Section 2.8.1.1 of the Pitkin County Home Rule Charter provides that official action
by ordinance shall be required for the "granting of easements in public lands, acquisition, vacation,
sale, or purchase of any real property asset, lease in excess of one year of public lands, and
authorization of proceedings in eminent domain;" and
4. By Resolution No. 95-2019, the BOCC granted certain land use approvals (the
"Land Use Approval") for the construction of a utility scale solar project (the "Project") on
property owned by the Aspen Consolidated Sanitation District.
5. By Ordinance No. 036 - 2020, the BOCC granted an access easement (the
"Access Easement") to the Aspen Consolidated Sanitation District across property owned by
Pitkin County, which provided access to the Aspen Consolidated Sanitation District Property for
the construction of the Project.
6. As partial consideration for granting the Land Use Approval and the Access
Easement, the Aspen Consolidated Sanitation District was required to grant perpetual conservation
easement to Pitkin County on a portion of the Aspen Consolidated Sanitation District Property.
7. BOCC Resolution No. 95-2019 included as a condition of approval a requirement
that, prior to issuance of building permits for the Project, the Aspen Consolidated Sanitation
District would grant Pitkin County the perpetual conservation easement.
8. After the BOCC adopted the Land Use Approvals and after the BOCC granted the
Access Easement to the Aspen Consolidated Sanitation District, the Aspen Consolidated
Sanitation District questioned its legal ability to grant a perpetual conservation easement to Pitkin
County on the Aspen Consolidated Sanitation District Property.
9. The Aspen Consolidated Sanitation District now is of the opinion that it needs
approval from the United States Environmental Protection Agency (the "EPA") before it can grant
a perpetual conservation easement to Pitkin County. IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII1IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII
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DOC CCL— ORDINANCE
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Janice K. Vos Caudill, Pitkin County, CO
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10. The Aspen Consolidated Sanitation District is of the opinion that it has the legal
ability. to_ grant Pitkin • County a conservation easement with a lesser term — not in perpetuity —
without the approval of the EPA.
11. - The. Aspen Consolidated Sanitation District, however, desires to grant Pitkin
-County a conservation easement with a perpetual term, as was required and as the Aspen
-Consolidated- Sanitation District committed to during the BOCC hearings on the Land Use
Approval.
12 To effectuate the Aspen Consolidated Sanitation District intent to grant Pitkin
County.a perpetual conservation easement but at the same time recognizing that the EPA may have
some undefined right to prevent the Aspen Consolidated Sanitation District from doing so, the
Aspen Consolidated Sanitation District and Pitkin County have entered into an Escrow Agreement
whereby two (2) forms of the required conservation easement — one with a perpetual term and one
with a term commensurate with the term of the special review approval set forth in the Land Use
Approval - are held in escrow pending application by the Aspen Consolidated Sanitation District
to the EPA for the required approval, if any, to grant Pitkin County a conservation easement with
a perpetual term.
13. As set forth in the Escrow Agreement, the Aspen Consolidated Sanitation District
may commence construction of the Project during the pendency of its request to the EPA for the
ability to grant Pitkin County a perpetual conservation easement.
14. However, in the event that the EPA does not grant approval to the Aspen
Consolidated Sanitation District for the grant of a perpetual conservation easement to Pitkin
County, the Aspen Consolidated Sanitation District and the BOCC recognize that such action by
the EPA may be out of the control of either party.
15. Accordingly, if the Aspen Consolidated Sanitation District is denied the legal
ability to grant a perpetual conservation easement to Pitkin County, the Aspen Consolidated
Sanitation District shall grant Pitkin County a conservation easement for the same term as the
Special Review approval granted by the BOCC in the Land Use Approval.
16. Therefore, the BOCC desires to accept a perpetual conservation easement from the
Aspen Consolidated Sanitation District or, in the alternative, a conservation easement with the
same term as the term of the Special Review approval granted by the BOCC in the Land Use
Approval.
17. The terms of the two conservation easements — one with a perpetual term and on
with a limited term - are set forth, and the Chair (or Chair's designee) shall be authorized to execute
each in a form substantially similar to those attached hereto as Exhibit 1 and Exhibit 2 upon
adoption by the BOCC and with approval to form by the Pitkin County Attorney's Office.
18. The BOCC finds that adoption of this Ordinance is necessary for the immediate
preservation of the public health, safety and welfare of the citizens of Pitkin County and therefore
declares this Ordinance to be effective immediately upon adoption.
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NOW THEREFORE, BE IT ORDAINED that the Board of County Commissioners of
the County of Pitkin, Colorado, hereby adopts this Ordinance Accepting a Conservation Easement
from the Aspen Consolidated Sanitation District as set forth above. The Chair of the Board of
County. Commissioners of the County of Pitkin, Colorado, or his or her designee, is further
authorized to execute such documents as necessary to consummate this transaction subject to the
recommendation for approval as to form by the County Attorney.
INTRODUCED AND FIRST READ ON THE 24th DAY OF JUNE
20_20_ AND SET FOR SECOND READING AND PUBLIC HEARING ON THE
26 DAY OF AUGUST 20 20 .
NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE
ORDINANCE PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE 11
DAY OF JUNE 20 20 .
NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE ORDINANCE POSTED ON
THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com ) ON THE_13
DAY OF AUGUST 20 20 .
ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON THE 26th DAY
OF AUGUST 20 20 .
PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE ASPEN
TIMES WEEKLY ON THE 3rd DAY OF SEPTEMBER 20 20 .
POSTED BY TITLE AND SHORT SUMMARY ON THE OFFICIAL PITKIN COUNTY
WEBSITE (www.pitkincounty.com) ON THE _27th DAY OF AUGUST
20 20 .
ATTEST: BOARD OF COUNTY COMMISSIONERS
By: jt,aa tith, jau.S
Jeanette Jones
Deputy County Clerk
APPROVED AS TO FORM:
By:
Richard Y. Neiley III
Asst. County Attorney
By:
S4even F. CULL
Steven F. Child, Chair
Oct-19-2020
Date:
MANAGER APPROVAL
By: Pb4 S Gc.
Phylis Mattice for Jon Peacock, County Manager
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Exhibit
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (hereinafter referred to as "Escrow, Agreement") is. made and
entered into as of July t, 2020, by and among (i) ASPEN CONSOLIDATED SANITATION
DISTRICT; a Colorado quasi -municipal corporation and public entity ("ACSD"), (ii) -the BOARD OF
COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, a body corporate and politic,
("the County") and (iii) BAKER HOSTETLER LLP, an Ohio limited liability partnership (hereinafter
referred to as "Escrow Agent").
WHEREAS, ACSD applied for and received approval from the County for Special Review Use,
Activity Envelope and Site Plan review, and a Permit for an Activity of State Interest for the construction
of a major facility' of a public utility, for the construction of a 35 acre ground mounted solar project
("Solar Project") on real property owned by ACSD, and the necessary approvals for construction are
reflected in Resolution No, 095.-2019 of the Board of County Commissioners of Pitkin County, approved
and adopted November 13, 2019 and recorded in the real property records of Pitkin County on December
18, 2019 at Reception No. 661280 ("Resolution"); and
WHEREAS, Condition # 5::to the Resolution requires ACSD to grant and record a conservation
easement dedicated to the County and to be managed by the County's Open Space and Trails program on
that area of the ACSD Property that extends from the top of the slope down into the gorge of the Roaring
Fork River to the boundary the ACSD property in the riverbed; and
WHEREAS, ACSD originally acquired'. the larger parcel of real property through a grant from the
Environmental Protection Agency ("EPA") under a Clean Water Act ("CWA") construction grant in
1977, and the: property is subject to the terms -of that grant as evidence in terms and conditions, set forth in
the Statement of Federal Interest in Land Purchased, with Federal Monies, for Ultimate Disposal Of
Wastewater Treatment Plant Discharges recorded in the real prop erty records of Pitkin County on October
18, 1977 in Book 336.at Page 792; and
WHEREAS, the County has requested and ACSD intends to grant a perpetual conservation
easement in the form approved by both Parties ("Conservation Easement") to the County to satisfy
Condition #5, but has become concerned that ACSD needs EPA approval to grant the Conservation
Easement in perpetuity; and
WHEREAS, to facilitate a present grant of the Conservation Easement, .the Parties have agreed to
enter into this Escrow Agreement and to place two versions of the .conservation easement, one with a
perpetual term and one with a limited term, into escrow for the benefit of the County and to be released
upon the conditions set forth herein.
NOW, THEREFORE, :in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which is acknowledged hereby, the parties hereto covenant
and agree as follows:
1. Appointment of Escrow Agent. ACSD and the County hereby appoint Baker Hostetler LLP as
Escrow Agent hereunder.
2. Delivery of Conservation Easements. ACSD and the County shall deliver two fully executed and
acknowledged versions of the Conservation Easement to Escrow Agent within sixty (60) days
from the date this Agreement is last executed by the parties. Version A of the Conservation
Easement, attached hereto as Exhibit A, is a grant of conservation easement in perpetuity.
Version B of the Conservation Easement, attached hereto as Exhibit B, is a grant of conservation
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easement for a term that is coterminous with the Special Review Use Permit granted by the.
Resolution. In all other respects, the two versions of the Conservation Easement are identical.
Escrow Agent will hold the original, executed and acknowledged versions of both.
3. Conditions to and Release and Recordation of Conservation Easement.
a. .Satisfaction of Conditions. Upon the execution of, this Escrow Agreement, ACSD will
immediately commence good faith efforts to obtain approval of the grant, in perpetuity, of the;
Conservation Easement by ACSD to the County from the EPA. When ACSD receives either
EPA approval or EPA denial of same, ACSD will notify the County and Escrow Agent in
writing and forward any correspondence from EPA evidencing its determination within three
(3) business days of receipt of same. ACSD shall provide the County notice of any
application, request, communication, and/or similar information between it and the EPA
regarding satisfaction of this condition 3.a. At Pitkin County's request, ACSD will share
such communications subject to any reasonable claim to confidentially or need to redact
information in those communications.
b. Action by Escrow Agent. Upon receipt by Escrow Agent of notice from ACSD, the Escrow
Agent shall either:
i. if the EPA approves ACSD's grant of the Conservation Easement in perpetuity, then
Escrow Agent will: (a) record Version A. of the Conservation Easement (grant in
perpetuity) in the real property records of Pitkin County; (b) immediately destroy the
executed copy of Version B of the Conservation Easement in its possession; and (c)
circulate copies of the. recorded Conservation Easement to ACSD and the County; or
ii. If the EPA does not approve ACSD's grant of the Conservation Easement in perpetuity,
then Escrow Agent will: (a) record Version B of the. Conservation Easement
(Coterminous with Special Review Use Permit) in the realproperty records of Pitkin
County; (b)- immediately destroy the executed copy of Version A of the Conservation
Easement in its possession; and (c) circulate copies of the recorded Conservation
Easement to ACSD and the County.
4: Satisfaction of Condition #5 to the Resolution. Notwithstanding the requirement that fully
executed versions of the Conservation Easement will not be executed at the time of executing this
Escrow Agreement, the County and ACSD hereby agree,that execution of this Escrow Agreement
and the placing of the two unexecuted versions of the Conservation Easement into escrow
satisfies Condition #5 to the .Resolution, and after the execution of this Escrow Agreement and
placing of the two unexecuted versions of the Conservation Easement into escrow, ACSD. and its
lessees and assignees can proceed with development and construction of the Solar Project as.
though Condition #5 had been fully performed, assuming all other conditions of approval are
satisfied when due.
5. Terms & Conditions of Escrow.
a. Escrow Agent Not Liable. The Parties agree that ;Escrow _Agreement will not be liable to
any party with respect to (i) any action taken or omitted to be taken in good faith relating to •
its duties and responsibilities under this agreement or (ii) any action taken or omitted to be
taken in reliance upon any document, including any written notice of instruction provided in
this Escrow Agreement, not only as to its due execution and the validity and effectiveness of
its provisions, but also the truth and accuracy of any information contained therein, which
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Escrow Agent shall in good faith believe to be genuine, to have been signed or presented by a
proper person or persons and to conform with the provisions of this Escrow Agreement. The
Parties hereto hereby agree to indemnify and hold Escrow Agent absolutely harmless- against
any and all losses, claims, damages, liabilities and expenses, including without limitation,
costs, attorneys' fees and disbursements which may be imposed upon or incurred by Escrow
Agent in connection with its serving as Escrow Agent hereunder.
b. Disputes. Escrow Agent is specifically authorized to refuse to act, except upon written
instructions signed, by both parties and delivered as set forth herein. In the event of a dispute
between the parties hereto, sufficient in the ,sole discretion of the Escrow Agent tojustify its
doing so, the Escrow Agent is entitled to tender unto the registry or custody of any court of
competent jurisdiction the both Versions of the Conservation Easement, together with such
legal pleadings as it deems appropriate and thereupon be released and discharged.
c. Authority. Each of the parties executing this agreement does hereby represent and warrant
that such party has the full right and authority to enter into this Agreement, and that each
person signing on behalf ofsuch party is duly authorized in the capacity shown.
d. Notice. Any notices which may be. permitted or required: under the terms and provisions of
this Agreement shall be in writing and shall be deemed to have been duly given as of. the date
and time the same are received by the parties to whom the notices. are sent. Any notice sent
by email must also be sent by another. means of delivery provided herein within five (5) days
of delivery of the email notification but shall nonetheless be effective .as of the date of the
delivery by email as provided -herein. If .any party provides for a copy (or copies) of such
notice to be delivered as. set forth below, notice to such party shall be deemed given only in
the event such copy (or copies) are also deemed received. All .notices shall be deemed
received upon hand delivery or delivery by FedEx or. equivalent courier and evidenced by a
notation on the records of that courier that such notices were deliveredto the parties at the
following addresses or if sent by email; upon receipt of electronic confirmation that such
notices were delivered to the parties at the following email. addresses:
If to County:
Pitkin. County
530 East 'Main Street, Suite 302
Aspen, Colorado 81611
With a copy to:
Pitkin County Attorney's Office
'530'East Main. Street, Suite 301
Aspen, Colorado 81611
attorney@pitkineotinty.com
If to ACSD:
Aspen Consolidated San District
565 North Mill Street
Aspen, Colorado 81611
With a copy to:
4810-7442-6048.5
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Robert L. Tibbals
P.O. Box 3112
Englewood, CO 80155-3112
rites(' @hotmail.com
If to Escrow Agent:
Baker & Hostetler LLP
1801 California Street I Suite 4400
Denver, CO 80202-2662
eclark @bakerlri‘V.COin
e. Miscellaneous. The recitals to this Escrow Agreement are incorporated herein by this
reference and made a part hereof. This Escrow Agreement is governed by the law of the
State of Colorado. The provisions of this agreement inure to the benefit of and Will be
binding upon the parties hereto and their respective successors, devisees and asSigns.. This
agreement may be executed in multiple 'counterparts, each of Which shall constitute an
original, but all of which when taken together constitute one and the same agreement. This
Escrow Agreement may be electronically executed and delivered by email which email shall
constitute a binding and valid execution hereof.
'IN WITNESS WHEREOF, the patties hereto have caused their duly authorized officers to
execute this Escrow Agreement effective as of the date of the last patty to sign:
[Signatures on following pages]
4810-7442-6048:5
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IN WITNESS WHEREOF, the undersigned have caused this instrument to be duly executed as of
the day and year first above written.
PITKIN COUNTY:
BOARD OF COUNTY COMMISSIONERS, FITKIN
COUNTY, COLORADO, a body politic
Skeven F. GUI
By:
Name: Steven F. Child
'Title: Pitkin county commissioner
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ACSD:
ASPEN CONSOLIDATED SANITATION
DISTRICT, a Colorado quasi -municipal corporation
and public entity
By:..
Natne:
4810-7442-6048.5
aci G • .ar
r
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ESCROW AGENT:
BAKER HOSTETLER LLP, an Ohio limited liability
partnership
By:
Name: Eben P. Clark
Title: Counsel
Exhibits:
Exhibit A — Conservation Easement Version A — Perpetual Grant
Exhibit B — Conservation Easement Version B — Coterminous with Special Review Use Permit
4810-7442-6048.5
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Exhibit A
Conservation Easement Version A —Perpetual Grant
4810-7442,6048.5
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Recording requested by and return to:
PITKIN COUNTY OPEN SPACE & TRAILS
530 East Main Street, Suite 300
Aspen, CO 81611
DEED OF CONSERVATION EASEMENT
FOR THE ASPEN CONSOLIDATED SANITATION DISTRICT SOLAR SITE
THIS DEED OF CONSERVATION EASEMENT (the "Easement") is made and entered
into this = day of - , 2020 between the Aspen Consolidated Sanitation District, a Colorado
quasi -municipal corporation and public entity, having its address at 565 North Mill Street, Aspen,
Colorado 81611 (the "Grantor"), and the Board of County Commissioners of Pitkin County,
Colorado, a body corporate and politic, having its address at 530 East Main Street, Suite 301, Aspen,
Colorado 81611 (the "Grantee") (collectively, the "Parties").
The following exhibits are attached hereto:
Exhibit A: Legal Description of the Property
Exhibit B: Map of the Property
RECITALS:
A. Grantor is the record owner of that certain real property in Pitkin County, Colorado,
consisting of approximately 5.5 acres, which is more particularly described on Exhibit "A" attached
hereto and made a part hereof by this reference, and which is referred to herein as the "Property";
B. The Property possess natural, scenic, open space, wildlife, and recreational values
(collectively referred to as the "Conservation Values") of importance to Grantor, the Grantee, the
people of Pitkin County, and the people of the state of Colorado that worthy of preservation;
C. The Conservation Values of the Property are more particularly described in the
Baseline Documentation, described in Section 2 herein, and include the following conservation
purposes, the protection of which are recognized for qualified conservation contributions under
Section 170(h)(4)(A) of the Internal Revenue Code of 1986, as amended ("IRC"), and under Section
1.170A-14(d) of the Treasury regulations:
• Relatively Natural Habitat [§1.170A-14(d)(3)]: The Property contains oak shrublands,
riparian woodland, and aquatic habitat. The habitat on the Property is also "significant" as
required by the Treasury Regulations, as it represents high quality aquatic habitat. The
Property lies within the Roaring Fork at Brush Creek Potential Conservation Area (PCA) as
designated by the Colorado Natural Heritage Program for its high biodiversity significance.
• Open Space [§1.170A-14(d)(4)]: The Property qualifies as open space because it will be
preserved for the scenic enjoyment of the general public and is pursuant to a clearly delineated
governmental conservation policy. Conservation of the Property will further yield a
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significant public benefit.
Scenic Enjoyment — The conservation of river, riparian and native upland habitats on the
Property contribute to the scenic character of the area. The Jaffee River Trail travels along
the -east side of the Roaring Fork River offering the general public access to the scenic native
riparian -ecosystems. The contiguity with neighboring public land contributes to an expanse
of scenic open space offered to visitors and residents of Pitkin County.
Significant Public Benefit - Located adjacent to heavily developed areas of Pitkin County, the
Property provides a natural buffer adjacent the Roaring Fork River and the Jaffee River Trail
for wildlife and public enjoyment. Conservation of the Property allows the public to enjoy an
area that would otherwise be under pressure for development. There is.a strong likelihood that
development of the Property would contribute to degradation of the scenic and natural
character of the area and would result in loss of high -quality natural habitat and could
negatively impact the river quality. Preservation of this Property continues to provide an
opportunity for the general public to appreciate its scenic, recreational and educational values
and protects important plant, wildlife and river habitat and continuity with other public land
and open spaces.
Recreation - The Property offers the public recreation opportunities in a scenic and natural
setting. The Property is encumbered by a fishing license that allows angler's access and the
Jaffee River Trail traverses the Property. Bikers, joggers and walkers, as well as anglers and
boaters wishing to access the Roaring Fork River, use this popular recreation trail. The river,
included in the Property, is a popular stretch providing Class IV whitewater for boaters and
fishing pockets for anglers. The Roaring Fork River is described as one of Colorado's premier
freestone trout fisheries. The conservation of this scenic river contributes to the state's leading
fishing waters that designate it a Gold Medal River just downstream of the Property north of
the confluence with the Fryingpan River. The recreation trail and fishing license allows the
public to visually access surrounding natural landscapes, enjoy wildlife, access the river and
provides educational opportunities through environmental educational organizations.
Governmental Policies - Conservation of the Property is promoted by the following local and
state governmental policies. The laws and regulations of the State of Colorado and the
United States also support conservation of the Property relative to its scenic, wildlife habitat,
agricultural heritage, educational and natural area values:
• Colorado Revised Statutes §§ 38-30.5-102 provide for the establishment of
conservation easements to maintain land "in a natural, scenic, or open condition, or
for wildlife habitat, or for agricultural...or other use or condition consistent with the
protection of open land, environmental quality or life -sustaining ecological
diversity."
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• The Colorado Wildlife and Parks and Outdoor Recreation statutes, Colorado
Revised Statutes §§ 33-1-101 and §§ 33-10-101, which provide, respectively, that
"it is the policy of the state of Colorado that the wildlife and their environment are
to be protected, preserved, enhanced, and managed for the use, benefit, and
enjoyment of the people of this state and its visitors" and that "it is the policy of the
state of Colorado that the natural, scenic, scientific, and outdoor recreation areas of
this state are to -be protected, preserved, enhanced, and managed for the use, benefit,
and enjoyment of the people of this state and visitors of this state."
• The Western Governors' Association Policy Resolution 08-21 supports "voluntary
incentive -based methods for preserving open space, maintaining land and water for
agricultural and timber production, wildlife and other values."
• Pitkin County addresses the need for protecting open space in its Hoine Rule
Charter, which contains the Open Space and Trails Program's enabling legislation
under Article XIII. Criteria for open space acquisitions include: (1) Areas within
public scenic view planes; (2) Incorporating or protecting significant wildlife
habitat; (3) Protecting riparian or wetlands areas; (4) Protecting other public lands
from the impacts of development.
• The Pitkin County Land Use Code states that the preservation of wildlife habitat,
open space and agricultural operations conforms with Policies 2-120 (Scenic
Quality), 2-160 (Wildlife Management) and 2-240 (Compatibility with Agricultural
Lands and Operations), 2-280 (Compatibility with Public Lands), and 2-290
(Access to Public Lands).
• The Pitkin County Strategic Plan supports conserving the natural environment
within the Community Vision which is supported by Core Focus Areas including;
(1) Flourishing Natural and Built Environment which states "Conserved natural
resources and environment" as a Success Factor; and (2) Livable and Supportive
Community which states "Access to recreation..." as a Success Factor.
NOW, THEREFORE, in consideration of the above and the mutual covenants,
terms, conditions, and restrictions contained herein, and pursuant to the laws of the State of
Colorado, and in particular C.R.S. § 38-30.5-101 et seq., Grantor hereby voluntarily grants and
conveys to Grantee a conservation easement in gross in perpetuity over the Property, of the
nature and character and to the extent hereinafter set forth.
1. Purpose. It is the essential purpose of this Conservation Easement to preserve and
protect, in perpetuity of natural, ecological, open space, and scenic 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 Property will be preserved and protected forever.
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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. Baseline Documentation Report. A collection of baseline data on the Property and
its resources (the "Baseline Documentation") shall be prepared within one (1) year following
.. conveyance of this Conservation Easement to Grantee. The data and explanatory text, photographs
and maps to be assembled in the Baseline Documentation is agreed by the parties hereto to provide
an accurate representation of the Property at the time of this grant, notwithstanding the fact that
the Baseline Documentation will be prepared after the effective date of this grant, and the parties
acknowledge that the Baseline Documentation will serve as an objective information baseline for
monitoring compliance with the terms of this Conservation Easement. Grantor shall bear the
expense of the preparation of the Baseline Documentation.
3. Rights of Grantee. To accomplish the purpose of this Deed the following rights are
conveyed to Grantee by this Deed:
A. To preserve and protect the Conservation Values of the Property;
B. To enter upon the Property at reasonable times in order to monitor Grantor's
compliance with the terms of this Deed; provided that such entry shall be upon prior
reasonable notice to Grantor, which shall typically be no less than forty-eight (48) hours
advance notice, and Grantee shall not unreasonably interfere with Grantor's use and quiet
enjoyment of the Property; and
C. To prevent any activity on or use of the Property that is inconsistent with the
purpose of this Deed and to require the restoration of such areas or features of the
Property that may be damaged by any inconsistent activity or use.
4. Permitted and Prohibited Uses. Grantor shall not perform, nor knowingly allow
others to perform, any act on or affecting the Property that is inconsistent with the covenants
herein. Grantor hereby authorizes Grantee to enforce these covenants in the manner described
below. However, unless otherwise specified, nothing in this Deed shall require Grantor to take any
action to restore the condition of the Property after any fire, change in climate, Act of God or other
event over which Grantor had no control. Grantor understands that nothing in this Deed relieves
them of any obligation or restriction on the use of the Property imposed by law.
A. Structures. The construction of any building or other structures or improvement
other than permitted under the terns of this Conservation Easement, is prohibited.
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B. _ 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 Parks and Wildlife ("CPW") 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.
C. 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.
D. Development Rights. Grantor hereby grants to Grantee all development rights
except as specifically reserved herein, and the parties agree that such rights are tenninated
and extinguished and may not be used on or transferred off the Property to any other
property adjacent or otherwise.
E. Conservation Practices. Grantor recognizes the importance of good resource
management and stewardship to maintain the Conservation Values for present and future
generations. Grantor shall comply with and have responsibility for compliance of the
Property with the Colorado Noxious Weed Act and any other governmental noxious
weed control regulations.
F. Timber Harvesting. Trees may be cut to control insects and disease, to prevent
personal injury and property damage.
G. Mining. The commercial mining or extraction of soil, sand, gravel, oil, natural gas,
fuel, coal, or any other mineral substance owned by Grantor as of the date of this Deed
or later acquired by Grantor, using any surface mining method is prohibited.
H. Paving and Road Construction. No portion of the Property shall be paved or
otherwise be covered with concrete, asphalt, or any other paving material. No additional
road shall be constructed for access within the Property, for access to other adjacent
properties, or for other purposes, except for any unpaved road necessary for agricultural
production or any road reasonably required for agricultural purposes. After reasonable
notice to Grantee, any such road permitted by this paragraph shall be constructed in a
manner that does not substantially diminish or impair the Conservation Values of the
Property.
I. Trash. The dumping or accumulation of any kind of trash or refuse on the Property,
other than refuse produced on the Property, is strictly prohibited.
J. Recreational Uses and Improvements. No recreational building, structure or
improvement shall be built on the Property, including but not limited to, athletic fields,
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golf courses or ranges, race tracks, airstrips, helicopter pads, or shooting ranges. _Low -
impact recreational structures, defined as an improvement whose location, use and
construction which has negligible impact on the Property and does not degrade the
Conservation Values, such as benches, picnic tables, and interpretive signage for public
enjoyment and education are permitted. Use of the Property for more than "de minimis"
commercial recreation activity is prohibited. The term "de minimis" shall have the
meaning as set forth in § 203 1(c)(8)(B) of the IRC and the Treasury Regulations adopted
pursuant thereto. Non -motorized recreational uses are permitted only if they are (i) not
commercial, except as permitted by Paragraph 18; (ii) for Grantor and Grantor's invitees
only; and (iii) conducted in a manner that would not substantially diminish the
Conservation Values.
K. Motorized Vehicles. Motorized vehicles may only be used in a manner that does
not substantially diminish or impair the Conservation Values of the Property. There shall
be no off -road vehicle courses for snowmobiles, all -terrain vehicles, motorcycles, or
other motorized vehicles. Recreational use of motorized vehicles is prohibited.
L. Commercial Uses. No industrial uses shall be allowed on the Property. Commercial
uses are allowed, as long as they are conducted in a manner that is consistent with
§ 170(h) of the IRC and the Treasury Regulations adopted pursuant thereto, are consistent
with the purposes of this Deed, and do not substantially diminish or impair the Property's
Conservation Values. Without limiting other potential commercial uses that meet the
foregoing criteria, the following uses are allowed: processing or sale of farm or ranch
products predominantly grown or raised on the Property; home occupations conducted
by and in the home of a person residing on the Property; professional commercial
activities including, but not limited to, real estate brokerage, insurance, financial
planning, and the practice of law conducted by Grantor or related parties; and customary
rural enterprises, such as hunting, fishing, farm machinery repair, bed and breakfasts,
livestock veterinary services, and similar enterprises conducted by Grantor or by another
person residing on the Property.
M. Signage or Billboards. No commercial signs, billboards, awnings, or
advertisements shall be displayed or placed on the Property, except for appropriate signs
alerting the public to relevant regulations regarding public access and recreation. No
signs shall materially adversely affect the Conservation Values of the Property.
5. Rights Retained by Grantor. Subject to interpretation under Paragraph 14 titled
"Interpretation," as owners of the Property, Grantor retains the right to perform any act not
specifically prohibited or limited by this Deed. These ownership rights include, but are not limited
to, the right to exclude any member of the public from trespassing on the Property and the right to
sell or otherwise transfer the Property to anyone they choose.
6. Public Access. No right of access by the general public to any portion of the
Property is conveyed by this Easement. Grantor and Grantee acknowledge the general public
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shall -have access to -the property_ in accordance with the fishing license, recorded April, 21, 1992,
at- reception number 343817 in the -real property records of Pitkin County, Colorado (Fishing
License) and that the general public access the Fishing License area using the Jaffee River Trail
which- originates on neighboring public open space. Grantee acknowledges that access is
consistent -with this Easement and is consistent with Colorado's recreation use statute C.R.S. §33-
41-101 etseg.
7. - Notice of Intention to Undertake Certain Permitted Actions. The purpose of
requiring Grantors to notify Grantee prior to undertaking certain permitted activities is to afford
Grantee an opportunity to ensure that the activities in question are designed and carried out in a
manner consistent with the purpose -of this Deed. Whenever notice is required, Grantors shall
notify Grantee in writing not less than thirty (30) days prior to the date Grantors intend to undertake
the activity in question. The notice shall describe the nature, scope, design, location, timetable,
and any other material aspect of the proposed activity in sufficient detail to permit Grantee to make
an informed judgment as to its consistency with the purpose of this Deed.
8. Grantee's Approval. Where Grantee's approval is required, Grantee shall grant or
withhold its approval in writing within sixty (60) days of receipt of Grantor's written request
therefor. 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 Deed. Failure of Grantee
to respond within the required sixty (60) days shall not be deemed approval by Grantee.
9. Responsibilities of Grantor and Grantee Not Affected. Other than as specified
herein, this Deed is not intended to impose any legal or other responsibility on Grantee, or in any
way to affect any existing obligation of Grantor as owner of the Property. Among other things,
this shall apply to:
A. Taxes. Grantor shall continue to be solely responsible for payment of all
taxes, if any, and assessments before delinquency levied against the Property by competent
authority (collectively "taxes"). If Grantee are ever required to pay any taxes or assessments on its
interest in the Property, Grantor will reimburse Grantee for the same.
B. Upkeep and Maintenance. Grantor shall continue to be solely responsible
for the upkeep and maintenance of the Property, to the extent it may be required by law. Grantee
shall have no obligation for the upkeep or maintenance of the Property.
• C. Liability and Indemnification. If Grantee are ever required to defend
themselves from claims or are required by a court to pay damages resulting from personal injury
or property damage that occurs on the Property, Grantor shall indemnify and reimburse Grantee
for these payments, as well as for reasonable attorney's fees and other expenses of defending itself,
unless Grantee or any of their agents have committed a negligent or deliberate act that is
determined by a court to be a cause of the injury or damage. In addition, Grantee may request
Grantor to warrant that Grantee are and will continue to be an additional insured on Grantor's
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liability insurance policy covering the Property. If so requested, Grantor shall provide certificates,
of such insurance to Grantee upon reasonable request on an annual basis.
10. Enforcement. Grantee shall have the right to prevent and correct -or require
correction of violations of the terms of this Deed. With reasonable advance notice to Grantor
(except in the case of any ongoing or imminent violation, in which case such notice is not required),
Grantee may enter the Property for the purpose of inspecting for violations. If Grantee finds what
it believes -is a violation, Grantee may, at its discretion, take appropriate legal action. Upon
discovery of any such violation, the Grantee shall immediately notify Grantor in writing of the
alleged violation. The Grantee shall give Grantor sixty (60) days to correct the alleged violation
before filing any legal action. When an ongoing or imminent violation is causing material damage
to or could irreversibly diminish or impair the Conservation Values of the Property, Grantee may,
at its discretion, take appropriate legal action. If the parties cannot resolve the violation themselves,
the parties may mutually agree to an alternative method of dispute resolution, such as meditation.
If a court with jurisdiction determines that a violation may exist or has occurred, Grantee may
obtain an injunction to stop it, temporarily or permanently, in addition to such other relief as the
court deems appropriate. A court may also issue an injunction requiring Grantor to restore the
Property to its condition prior to the violation. In any case where a court finds that a violation has
occurred, Grantor shall reimburse Grantee for all its expenses incurred in stopping and correcting
the violation, including but not limited to reasonable attorneys' fees.
Any failure by Grantee to discover a violation or forbearance by the Grantee to exercise
their rights under this Deed in the event of any breach of any term of this Deed by Grantor shall
not be deemed or construed to be a waiver by Grantee of such term of any subsequent breach of
the same or any other term of this Deed or of any of Grantee's rights under this Deed. No delay or
omission by the Grantee in the exercise of any right or remedy upon any breach by the Grantor
shall impair such right or remedy or be construed as a waiver. The Grantor hereby waives any
defense available to the Grantor pursuant to Colorado Revised Statutes §38-41-119, or the defense
of laches, estoppel, or prescription.
11. Transfer of Easement; Requirement for Assignment or Enforcement.
A. Transfer by Grantee. With the prior written consent of Grantor (which
consent shall not be unreasonably withheld) Pitkin County shall have the right to transfer the
easement created by this Deed and to assign its rights thereunder to any private nonprofit
organization that, at the time of transfer, is a qualified organization under § 170(h) of the IRC, and
under Colorado Revised Statutes §38-30.5-101, et seq., (a "Qualified Organization"), expressly
agrees to assume the responsibility imposed on Grantee by this Deed and agrees that the
conservation purposes that this Deed is to advance continue to be carried out. Notwithstanding
anything in this paragraph to the contrary, this Deed shall not be transferred by Grantee to any
governmental entity or public agency without the consent of the Grantor, which consent shall be
in Grantor's sole discretion. If Grantee desires to transfer this Deed to a Qualified Organization
having similar purposes as Grantee, but Grantor refuses to approve the transfer, a court with
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jurisdiction shall transfer this Deed to another Qualified Organization having similar purposes and
mission as Grantee and that agrees to assume the responsibility of enforcing this Deed, provided
that Grantor receive notice of and an opportunity to participate in the court proceeding.
B. - Transfer by Judicial Process. If the Grantee ever ceases to exist, is no longer
a Qualified Organization, then the Deed shall be assigned to another Qualified Organization having
similar purposes that agrees to assume the responsibility imposed on Grantee by this Deed. If the
Grantee is -no longer monitoring and enforcing the terms of this Deed to preserve and protect the
Conservation Values of the Property, then the Grantor may apply to a court with jurisdiction for
such court -to transfer this Deed to another Qualified Organization having similar purposes that
agrees to assume the responsibility imposed on Grantee by this Deed, provided that Grantee and
Grantor receive notice of and an opportunity to participate in the court proceeding.
12. Transfer of the Property. Grantor shall notify Grantee in writing at least forty-five
(45) days prior to the transfer of the Property, and the document of conveyance shall expressly
refer to this Deed. Grantee shall have the right to record a document in the real property records in
Pitkin County to put such third parties on notice of the requirements of this paragraph, and of the
requirements of Paragraph 15. Failure to provide notice pursuant to this paragraph or such recorded
document shall not invalidate any transfer of the Property.
13. Amendment of Deed. This Deed may be amended only with the express prior
written consent of Grantee and Grantor by an instrument duly executed by Grantor and Grantee
recorded in the real property records of Pitkin County, Colorado. Any such amendment shall be
consistent with the purposes of this Deed and shall comply with § 170(h) of the IRC, or any
regulations promulgated thereunder. Any such amendment shall also be consistent with Colorado
Revised Statutes §38-30.5-101, et seq., or any regulations promulgated thereunder, and shall not
affect the perpetual duration of this Deed.
14. Condemnation or Other Extinguishment. If this easement is taken, in whole or in
part, by exercise of the power of eminent domain, or if circumstances arise in the future that render
the purpose of this easement impossible to accomplish, this Deed can only be terminated or
extinguished, whether in whole or in part, by judicial proceedings in a court of competent
jurisdiction. Each party shall promptly notify the other party in writing when it first learns of such
circumstances. Grantee as purchaser shall be entitled to compensation in accordance with
applicable law, after the satisfaction of prior claims, from any sale, exchange, condemnation, or
other involuntary or voluntary conversion of all or any portion of the Property subsequent to such
termination or extinguishment. Pitkin County's compensation shall be an amount equal to the
easement value percentage listed in the Real Property Interest paragraph 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, but not including the value of structural
improvements added subsequent to this Deed. Pitkin County shall use such proceeds in a manner
consistent with the conservation purposes of this Deed.
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15. Interpretation. This Deed shall be interpreted under the laws of the State of
Colorado, resolving any ambiguities and questions of the validity of specific provisions so as to
preserve the Conservation Values and give maximum effect to its conservation purposes.
16. Perpetual Duration. The easement created by this Deed shall be a servitude running
with the land in perpetuity. Every provision of this Deed that applies to Grantor or Grantee shall
also apply to their- respective agents, heirs, executors, administrators, assigns, and all other
successors as their interests may appear. A party's rights and obligations under this Deed terminate
upon a permitted transfer of the party's interest in this Deed or the Property, except that liability
for acts or omissions occurring prior to transfer shall survive transfer.
17. Notices. Any notices required by this Deed shall be in writing and shall be
personally delivered or sent by certified mail, return receipt requested, to Grantor, Grantee
respectively at the following addresses, unless a party has been notified by the other of a change
of address. Electronic delivery of notices shall also be deemed sufficient and considered
delivered upon receipt of confirmation of delivery on the part of the sender:
To Grantor:
Aspen Consolidated Sanitation District
565 North Mill Street
Aspen, Colorado 81611
To Grantee:
Board of County Commissioner of Pitkin County Colorado
c/o The Pitkin County Attorney's Office
530 East Main Street, Suite 301
Aspen, Colorado 81611
Email: attorney@pitkincounty.com
18. Grantor's Title Warranty. Grantor warrants that Grantor has good and sufficient title
to the Property and hereby promises to defend the same against all claims from persons claiming
by, through or under Grantor.
19. Grantor's Environmental Warranty and Indemnity. Grantor warrants that Grantor
has no actual knowledge of a release or threatened release of hazardous substances or wastes on
the Property and hereby promises to hold harmless, defend, and indemnify Grantee along with
their respective members, directors, officers, employees, agents, contractors, successors, and
assigns against all litigation, claims, demands, penalties, and damages, including reasonable
attorneys' fees, arising from or connected with any past, present or future presence or release of
hazardous or toxic substances on, under, or about the Property. For the purposes hereof,
"Hazardous Substances" does not mean any typical agricultural chemicals such as herbicides
and pesticides utilized on properties of this type in Pitkin County, provided that all such
4837-7040-9142.4
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chemicals are used in accordance with applicable laws and manufacturer's specifications. Without
limiting the foregoing, nothing in this Deed shall be construed as giving rise to any right or ability
in Grantee, nor shall 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. •
20. Subsequent Liens on the Property. No provisions of this Deed should be construed
as impairing the ability of Grantor to use this Property as collateral for subsequent borrowing,
provided that any mortgage or lien arising from such a borrowing shall be subordinated to this
Deed.
21. No Merger. No merger shall be deemed to have occurred hereunder or under any
document executed in the future affecting this Deed, unless the parties expressly state that they
intend a merger of estates or interests to occur.
22. Recording. Grantee shall record this Deed in the official records of Pitkin County,
and may re-record it at any time as may be required to preserve Grantee' rights hereunder.
23. Subsequent Transfers. Grantor shall incorporate the terms and conditions of this
Deed in any deed or other legal instrument by which it divests itself of any interest in all or a
portion of the Property, including, without limitation, conveyance of a leasehold interest to a third
party. Grantor further agrees to give written notice to Grantee of the transfer of any interest at least
twenty (20) days prior to the date of such transfer. The failure of Grantors to perform any act
required by this paragraph shall not impair the validity of this Deed or limit its enforceability in
any way.
24. Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this easement shall be liberally construed in favor of the grant to affect the
purpose of this Deed and the policy and purpose of Colorado Revised Statutes §38-30.5-101, et
seq. If any provision in this instrument is found to be ambiguous, an interpretation consistent with
the purpose of this easement that would render the provision valid shall be favored over any
interpretation that would render it invalid.
25. Severability. If any provision of this Deed, or the application thereof to any person
or circumstance, is found to be invalid, the remainder of the provisions of this 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 not be affected thereby.
26. Entire Agreement. This instrument sets forth the entire agreement of 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.
4837-7040-9142.4
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27. No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of
Grantor's title in any respect.
- -28. Successors. The covenants, terms, conditions, and restrictions of this 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.
29. Termination of Rights and Obligations. A party's rights and obligations under this
Deed 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.
30. 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.
31. Third Party Beneficiaries. This Deed is entered into by and between Grantor and
Grantee and does not create enforcement rights or responsibilities in any other third parties,
including the general public.
32. Acceptance. As attested by the signature of an authorized party affixed hereto,
Grantee hereby accepts, without reservation, the rights and responsibilities conveyed by this Deed.
Grantee acknowledge receipt and acceptance of this Deed encumbering the Property for which no
goods or services were provided.
33. Change of Conditions. A change in the potential economic value of any use that is
prohibited by or inconsistent with this easement, or a change in any current or future uses of
neighboring properties, shall not constitute a change in conditions that makes it impossible or
impractical for continued use of the Property for conservation purposes and shall not constitute
grounds for terminating the Deed.
34. No Land Use Approvals Imputed to Deed. The Grantor shall be solely responsible
for compliance with applicable laws in regard to the exercise of rights reserved herein, and, nothing
contained in this Deed is intended to represent a permit or land use approval by Pitkin County.
IN WITNESS WHEREOF, Grantor and Grantee have executed this Easement as of the day
and year first above written.
4837-7040-9142.4
[Signatures on Following Pages]
12
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4837-7040-9142.4
PITKIN COUNTY:
BOARD OF COUNTY COMMISSIONERS,
PITKIN COUNTY, COLORADO, a body politic
By:
Nance:
Title:
13
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4837-7040-9142.4
ACSD:
ASPEN CONSOLIDATED SANITATION
DISTRICT, a Colorado quasi -municipal
corporation and public entity
By:
Name:
Title:
14
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Exhibit A
Legal Description of the Property
A Tract of land for the purpose of a Conservation Easement, lying and situated in the Northeast Quarter
of Section 28, Township 9 South, Range 85 of the Sixth Principal Meridian, being a part of Government
Lot 1 of said Section, County of Pitkin, State of Colorado, said Tract more particularly described as
follows:
COMMENCING at the Northeast corner of said Section 28, also being the Northeast corner of said
Government Lot 1, monumented by a found 2-1/2 inch aluminum cap marked "D.B. & CO. PLS 27275
2002", from whence the North Quarter -corner of said Section 28, monumented by a found 3-1/4 inch cap
marked "CDOH PLS 17491" is assumed to bear South 89° 22' 16" West a ground distance of 2602.40
feet, and all bearings herein are relative thereto; thence South 89° 22' 16" West 440.00 feet on the North
line of said Section 28, also being the North line of said Government Lot 1, to the POINT OF BEGINNING
of said Tract; Thence departing said North line South 52° 36' 07" West 298.92 feet to a point; Thence
South 30° 29' 04" West 104.76 feet to a point; Thence South 06° 57' 02" West 37.65 feet to a point;
Thence South 28° 56' 29" East 43.05 feet to a point; Thence South 46° 12' 39" East 213.99 feet to a
point; Thence South 16° 00' 32" East 123.82 feet to a point; Thence South 33° 37' 18" East 63.70 feet to
a point on the South line of said Government Lot 1; Thence North 88° 25' 40" West 369.36 feet on said
South line to the centerline of Roaring Fork River as resolved by Colorado Department of Transportation
Right -of -Way plans for Project Number STR 0821-039 Unit 3, recorded in Survey Book 56 at Page 1 in
the Pitkin County Clerk and Recorder's office; Thence departing said South line and northerly on said
centerline the following four (4) courses and distances: 1) North 35° 15' 37" West 36.96 feet to a point; 2)
Thence North 39° 11' 20" West 268.42 feet to a point; 3) Thence North 09° 40' 45" East 125.45 feet to a
point; 4) Thence North 24° 44' 58" East 319.33 feet to a point on said North line of Section 28; Thence
departing said centerline North 89° 22' 16" East 455.86 feet on said North line to the POINT OF
BEGINNING, said Tract containing 239,581 square feet or 5.50002 acres.
4837-7040-9142.4
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RECEPTION#: 669864, 10/27/2020 at 12:26:18 PM, Pgs 28 of 44, Janice K. Vos Caudill, Pitkin County, CO
Exhibit B
Conservation Easement Version B — Coterminous with Special Use Permit
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Recording requested by and return to:
PITKIN COUNTY OPEN SPACE & TRAILS
530 East Main Street, Suite 300
Aspen, CO 81611
DEED OF CONSERVATION EASEMENT
- FOR THE ASPEN CONSOLIDATED SANITATION DISTRICT SOLAR SITE
THIS DEED OF CONSERVATION EASEMENT (the "Easement") is made and entered
into this day of- , 2020 between the Aspen Consolidated Sanitation District, 565 North
Mill Street, Aspen, Colorado 81611 (the "Grantor"), and the Board of County Commissioners of
Pitkin County, Colorado, a body corporate and politic, having its address at 530 East Main Street,
Suite 301, Aspen, Colorado 81611 (the "Grantee") (collectively, the "Parties").
The following exhibits are attached hereto:
Exhibit A: Legal Description of the Property
Exhibit B: Map of the Property
RECITALS:
A. Grantor is the record owner of that certain real property in Pitkin County, Colorado,
consisting of approximately 5.5 acres, which is more particularly described on Exhibit "A" attached
hereto and made a part hereof by this reference, and which is referred to herein as the "Property";
B. The Property possess natural, scenic, open space, wildlife, and recreational values
(collectively referred to as the "Conservation Values") of importance to Grantor, the Grantee, the
people of Pitkin County, and the people of the state of Colorado that worthy of preservation;
C. The Conservation Values of the Property are more particularly described in the
Baseline Documentation, described in Section 2 herein, and include the following conservation
purposes, the protection of which are recognized for qualified conservation contributions under
Section 170(h)(4)(A) of the Internal Revenue Code of 1986, as amended ("1RC"), and under Section
1.170A-14(d) of the Treasury regulations:
• Relatively Natural Habitat [§1.170A-14(d)(3)]: The Property contains oak shrublands,
riparian woodland, and aquatic habitat. The habitat on the Property is also "significant" as
required by the Treasury Regulations, as it represents high quality aquatic habitat. The
Property lies within the Roaring Fork at Brush Creek Potential Conservation Area (PCA) as
designated by the Colorado Natural Heritage Program for its high biodiversity significance.
• Open Space [§1.170A-14(d)(4)]: The Property qualifies as open space because it will be
preserved for the scenic enjoyment of the general public and is pursuant to a clearly delineated
governlnental conservation policy. Conservation of the Property will further yield a
significant public benefit.
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Scenic Enjoyment — The conservation of river, riparian and native upland habitats on the
Property contribute to the scenic character of the area. The Jaffee River Trail travels along
the east side of the Roaring Fork River offering the general public access to the scenic native
riparian ecosystems. The contiguity with neighboring public land contributes to an expanse
of scenic open space offered to visitors and residents of Pitkin County.
Significant Public Benefit - Located adjacent to heavily developed areas of Pitkin County, the
Property provides a natural buffer adjacent the Roaring Fork River and the Jaffee River Trail
for wildlife and public enjoyment. Conservation of the Property allows the public to enjoy an
area that would otherwise be under pressure for development. There is a strong likelihood that
development of the Property would contribute to degradation of the scenic and natural
character of the area and would result in loss of high -quality natural habitat and could
negatively impact the river quality. Preservation of this Property continues to provide an
opportunity for the general public to appreciate its scenic, recreational and educational values
and protects important plant, wildlife and river habitat and continuity with other public land
and open spaces.
Recreation - The Property offers the public recreation opportunities in a scenic and natural
setting. The Property is encumbered by a fishing license that allows angler's access and the
Jaffee River Trail traverses the Property. Bikers, joggers and walkers, as well as anglers and
boaters wishing to access the Roaring Fork River, use this popular recreation trail. The river,
included in the Property, is a popular stretch providing Class IV whitewater for boaters and
fishing pockets for anglers. The Roaring Fork River is described as one of Colorado's premier
freestone trout fisheries. The conservation of this scenic river contributes to the state's leading
fishing waters that designate it a Gold Medal River just downstream of the Property north of
the confluence with the Fryingpan River. The recreation trail and fishing license allows the
public to visually access surrounding natural landscapes, enjoy wildlife, access the river and
provides educational opportunities through environmental educational organizations.
Governmental Policies - Conservation of the Property is promoted by the following local and
state governmental policies. The laws and regulations of the State of Colorado and the
United States also support conservation of the Property relative to its scenic, wildlife habitat,
agricultural heritage, educational and natural area values:
• Colorado Revised Statutes §§ 38-30.5-102 provide for the establishment of
conservation easements to maintain land "in a natural, scenic, or open condition, or
for wildlife habitat, or for agricultural...or other use or condition consistent with the
protection of open land, enviromnental quality or life -sustaining ecological
diversity."
• The Colorado Wildlife and Parks and Outdoor Recreation statutes, Colorado
Revised Statutes §§ 33-1-101 and §§ 33-10-101, which provide, respectively, that
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"it is the policy of the state of Colorado that the wildlife and their environment are
to.be protected, preserved, enhanced, and managed for the use, benefit, and
enjoyment of the people of this state and its visitors" and that "it is the policy of the
state of Colorado that the natural, scenic, scientific, and outdoor recreation areas of
this state are to be protected, preserved, enhanced, and managed for the use, benefit,
and enjoyment of the people of this state and visitors of this state."
o The Western Governors' Association Policy Resolution 08-21 supports "voluntary
incentive -based methods for preserving open space, maintaining land and water for
agricultural and timber production, wildlife and other values."
o Pitkin County addresses the need for protecting open space in its Horne Rule
Charter, which contains the Open Space and Trails Program's enabling legislation
under Article XIII. Criteria for open space acquisitions include: (1) Areas within
public scenic view planes; (2) Incorporating or protecting significant wildlife
habitat; (3) Protecting riparian or wetlands areas; (4) Protecting other public lands
from the impacts of development.
o The Pitkin County Land Use Code states that the preservation of wildlife habitat,
open space and agricultural operations conforms with Policies 2-120 (Scenic
Quality), 2-160 (Wildlife Management) and 2-240 (Compatibility with Agricultural
Lands and Operations), 2-280 (Compatibility with Public Lands), and 2-290
(Access to Public Lands).
• The Pitkin County Strategic Plan supports conserving the natural environment
within the Community Vision which is supported by Core Focus Areas including;
(1) Flourishing Natural and Built Environment which states "Conserved natural
resources and environment" as a Success Factor; and (2) Livable and Supportive
Community which states "Access to recreation..." as a Success Factor.
NOW, THEREFORE, in consideration of the above and the mutual covenants,
terms, conditions, and restrictions contained herein, and pursuant to the laws of the State of
Colorado, and in particular C.R.S. § 38-30.5-101 et seq., Grantor hereby voluntarily grants and
conveys to Grantee a long -tens conservation easement in gross over the Property, of the nature
and character and to the extent hereinafter set forth.
1. Purpose. It is the essential purpose of this Conservation Easement to preserve and
protect natural, ecological, open space, and scenic 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 Property will be preserved and protected in the long-term. 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
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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. Baseline Docu nentation Report. A collection of baseline data on the Property and
its resources (the "Baseline Documentation") shall be prepared within one (1) year following
conveyance of this Conservation Easement to Grantee. The data and explanatory text, photographs
and maps to be assembled in the -Baseline Documentation is agreed by the parties hereto to provide
an accurate representation of the Property at the time of this grant, notwithstanding the fact that
the Baseline Documentation will be prepared after the effective date of this grant, and the parties
acknowledge that the Baseline Documentation will serve as an objective information baseline for
monitoring compliance with the terms of this Conservation Easement. Grantor shall bear the
expense of the preparation of the Baseline Documentation.
3. Rights of Grantee. To accomplish the purpose of this Deed the following rights are
conveyed to Grantee by this Deed:
A. To preserve and protect the Conservation Values of the Property;
B. To enter upon the Property at reasonable times in order to monitor Grantor's
compliance with the terms of this Deed; provided that such entry shall be upon prior
reasonable notice to Grantor, which shall typically be no less than forty-eight (48) hours
advance notice, and Grantee shall not unreasonably interfere with Grantor's use and quiet
enjoyment of the Property; and
C. To prevent any activity on or use of the Property that is inconsistent with the
purpose of this Deed and to require the restoration of such areas or features of the
Property that may be damaged by any inconsistent activity or use.
4. Permitted and Prohibited Uses. Grantor shall not perform, nor knowingly allow
others to perform, any act on or affecting the Property that is inconsistent with the covenants
herein. Grantor hereby authorizes Grantee to enforce these covenants in. the manner described
below: However, unless otherwise. specified, nothing in this Deed shall require Grantor to take any
action to restore the condition of the Property after any fire, change in climate, Act of God or other
event over which Grantor had no control. Grantor understands that nothing in this Deed relieves
them of any obligation or restriction on the use of the Property imposed by law.
A. Structures. The construction of any building or other structures or improvement
other than permitted under the terms of this Conservation Easement, is prohibited.
B. 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 Parks and Wildlife ("CPW") guidelines
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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.
C. 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.
D. Development Rights. Grantor hereby grants to Grantee all development rights
except as specifically reserved herein, and the parties agree that such rights are terminated
and extinguished and may not be used on or transferred off the Property to any other
property adjacent or otherwise.
E. Conservation Practices. Grantor recognizes the importance of good resource
management and stewardship to maintain the Conservation Values for present and future
generations. Grantor shall comply with and have responsibility for compliance of the
Property with the Colorado Noxious Weed Act and any other governmental noxious
weed control regulations.
F. Timber Harvesting. Trees may be cut to control insects and disease, to prevent
personal injury and property damage.
G. Mining. The commercial mining or extraction of soil, sand, gravel, oil, natural gas,
fuel, coal, or any other mineral substance owned by Grantor as of the date of this Deed
or later acquired by Grantor, using any surface mining method is prohibited.
H. Paving and Road Construction. No portion of the Property shall be paved or
otherwise be covered with concrete, asphalt, or any other paving material. No additional
road shall be constructed for access within the Property, for access to other adjacent
properties, or for other purposes, except for any unpaved road necessary for agricultural
production or any road reasonably required for agricultural purposes. After reasonable
notice to Grantee, any such road permitted by this paragraph shall be constructed in a
manner that does not substantially diminish or impair the Conservation Values of the
Property.
I. Trash. The dumping or accumulation of any kind of trash or refuse on the Property,
other than refuse produced on the Property, is strictly prohibited.
J. Recreational Uses and Improvements. No recreational building, structure or
improvement shall be built on the Property, including but not limited to, athletic fields,
golf courses or ranges, race tracks, airstrips, helicopter pads, or shooting ranges. Low -
impact recreational structures, defined as an improvement whose location, use and
construction which has negligible impact on the Property and does not degrade the
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- Conservation Values, such as benches, picnic tables, and interpretive signage for public
enjoyment and education are permitted. Use of the Property for more than "de minimis"
conunercial recreation activity is prohibited. The tern "de minimis" shall have the
meaning as set forth in § 2031(c)(8)(B) of the IRC and the Treasury Regulations adopted
pursuant thereto. Non -motorized recreational uses are permitted only if they are (i) not
commercial, except as permitted by Paragraph 18; (ii) for Grantor and Grantor's invitees
only; _and (iii) conducted in a manner that would not substantially diminish the
Conservation Values.
K. - Motorized Vehicles. Motorized vehicles may only be used in a manner that does
not substantially diminish or impair the Conservation Values of the Property. There shall
be no off -road vehicle courses for snowmobiles, all -terrain vehicles, motorcycles, or
other motorized vehicles. Recreational use of motorized vehicles is prohibited.
L. Commercial Uses. No industrial uses shall be allowed on the Property. Commercial
uses are allowed, as long as they are conducted in a manner that is consistent with
§ 17O(h) of the IRC and the Treasury Regulations adopted pursuant thereto, are consistent
with the purposes of this Deed, and do not substantially diminish or impair the Property's
Conservation Values. Without limiting other potential commercial uses that meet the
foregoing criteria, the following uses are allowed: processing or sale of farm or ranch
products predominantly grown or raised on the Property; home occupations conducted
by and in the home of a person residing on the Property; professional commercial
activities including, but not limited to, real estate brokerage, insurance, financial
planning, and the practice of law conducted by Grantor or related parties; and customary
rural enterprises, such as hunting, fishing, farm machinery repair, bed and breakfasts,
livestock veterinary services, and similar enterprises conducted by Grantor or by another
person residing on the Property.
M. Signage or Billboards. No commercial signs, billboards, awnings, or
advertisements shall be displayed or placed on the Property, except for appropriate signs
alerting the public to relevant regulations regarding public access and recreation. No
signs shall materially adversely affect the Conservation Values of the Property.
5. Rights Retained by Grantor. Subject to interpretation under Paragraph 14 titled
"Interpretation," as owners of the Property, Grantor retains the right to perform any act not
specifically prohibited or limited by this Deed. These ownership rights include, but are not limited
to, the right to exclude any member of the public from trespassing on the Property and the right to
sell or otherwise transfer the Property to anyone they choose.
6. Public Access. No right of access by the general public to any portion of the
Property is conveyed by this Easement. Grantor and Grantee acknowledge the general public
shall have access to the property in accordance with the fishing license, recorded April, 21, 1992,
at reception number 343817 in the real property records of Pitkin County, Colorado (Fishing
License) and that the general public access the Fishing License area using the Jaffee River Trail
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-_ which originates - on neighboring public open space. Grantee acknowledges that access is
consistent with this Easement and is consistent with Colorado's recreation use statute C.R.S. §33-
41-101 et seq.
. -7. Notice of Intention -to Undertake Certain Permitted Actions. The purpose of
requiring Grantors to notify Grantee prior to undertaking certain permitted activities is to afford
_ Grantee an opportunity -to ensure .that the activities in question are designed and carried out in a
manner consistent with the purpose of this Deed. Whenever notice is required, Grantors shall
notify Grantee in writing not less than thirty (30) days prior to the date Grantors intend to undertake
the activity in. question. The notice shall describe the nature, scope, design, location, timetable,
and any other material aspect of the proposed activity in sufficient detail to permit Grantee to make
an informed judgment as to its consistency with the purpose of this Deed.
8. Grantee's Approval. Where Grantee's approval is required, Grantee shall grant or
withhold its approval in writing within sixty (60) days of receipt of Grantor's written request
therefor. 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 Deed. Failure of Grantee
to respond.within the required sixty (60) days shall not be deemed approval by Grantee.
9. Responsibilities of Grantor and Grantee Not Affected. Other than as specified
herein, this Deed is not intended to impose any legal or other responsibility on Grantee, or in any
way to affect any existing obligation of Grantor as owner of the Property. Among other things,
this shall apply to:
A. Taxes. Grantor shall continue to be solely responsible for payment of all
taxes, if any, and assessments before delinquency levied against the Property by competent
authority (collectively "taxes"). If Grantee are ever required to pay any taxes or assessments on its
interest in the Property, Grantor will reimburse Grantee for the same.
B. Upkeep and Maintenance. Grantor shall continue to be solely responsible
for the upkeep and maintenance of the Property, to the extent it may be required by law. Grantee
shall have no obligation for the upkeep or maintenance of the Property.
C. Liability and Indemnification. If Grantee are ever required to defend
themselves from claims or are required by a court to pay damages resulting from personal injury
or property damage that occurs on the Property, Grantor shall indemnify and reimburse Grantee
for these payments, as well as for reasonable attorney's fees and other expenses of defending itself,
unless Grantee or any of their agents have committed a negligent or deliberate act that is
determined by a court to be a cause of the injury or damage. In addition, Grantee may request
Grantor to warrant that Grantee are and will continue to be an additional insured on Grantor's
liability insurance policy covering the Property. If so requested, Grantor shall provide certificates
of such insurance to Grantee upon reasonable request on an annual basis.
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10. Enforcement. Grantee shall have the right to prevent and correct or require
correction of violations of the terms of this Deed. With reasonable advance notice to Grantor
(except in the case of any ongoing or imminent violation, in which case such notice is not required),
Grantee may enter the Property for the purpose of inspecting for violations. If Grantee finds what
it believes is a violation, Grantee may, at its discretion, take appropriate legal action. Upon
discovery of any such violation, the Grantee shall immediately notify Grantor in writing of the
alleged violation. The Grantee shall give Grantor sixty (60) days to correct the alleged violation
before filing any legal action. When an ongoing or imminent violation is causing material damage
to or could irreversibly diminish or impair the Conservation Values of the Property, Grantee may,
at its discretion, take appropriate legal action. If the parties cannot resolve the violation themselves,
the parties may mutually agree to an alternative method of dispute resolution, such as meditation.
If a court with jurisdiction determines that a violation may exist or has occurred, Grantee may
obtain an injunction to stop it, temporarily or permanently, in addition to such other relief as the
court deems appropriate. A court may also issue an injunction requiring Grantor to restore the
Property to its condition prior to the violation. In any case where a court finds that a violation has
occurred, Grantor shall reimburse Grantee for all its expenses incurred in stopping and correcting
the violation, including but not limited to reasonable attorneys' fees.
Any failure by Grantee to discover a violation or forbearance by the Grantee to exercise
their rights under this Deed in the event of any breach of any term of this Deed by Grantor shall
not be deemed or construed to be a waiver by Grantee of such term of any subsequent breach of
the same or any other term of this Deed or of any of Grantee's rights under this Deed. No delay or
omission by the Grantee in the exercise of any right or remedy upon any breach by the Grantor
shall impair such right or remedy or be construed as a waiver. The Grantor hereby waives any
defense available to the Grantor pursuant to Colorado Revised Statutes §38-41-119, or the defense
of laches, estoppel, or prescription.
11. Transfer of Easement; Requirement for Assignment or Enforcement.
A. Transfer by Grantee. With the prior written consent of Grantor (which
consent shall not be unreasonably withheld) Pitkin County shall have the right to transfer the
easement created by this Deed and to assign its rights thereunder to any private nonprofit
organization that, at the time of transfer, is a qualified organization under § 170(h) of the IRC, and
under Colorado Revised Statutes §38-30.5-101, et seq., (a "Qualified Organization"), expressly
agrees to assume the responsibility imposed on Grantee by this Deed and agrees that the
conservation purposes that this Deed is to advance continue to be carried out. Notwithstanding
anything in this paragraph to the contrary, this Deed shall not be transferred by Grantee to any
governmental entity or public agency without the consent of the Grantor, which consent shall be
in Grantor's sole discretion. If Grantee desires to transfer this Deed to a Qualified Organization
having similar purposes as Grantee, but Grantor refuses to approve the transfer, a court with
jurisdiction shall transfer this Deed to another Qualified Organization having similar purposes and
mission as Grantee and that agrees to assume the responsibility of enforcing this Deed, provided
that Grantor receive notice of and an opportunity to participate in the court proceeding.
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B:, • Transfer by Judicial Process. lithe Grantee ever ceases to exist, is no longer
a Qualified Organization, then the Deed shall be assigned to another Qualified Organization having
similar purposes that agrees to assume the responsibility imposed on Grantee by this Deed. If the
Grantee is no longer -monitoring and enforcing the terms of this Deed to preserve and protect the
Conservation Values of the Property, then the Grantor may apply to a court with jurisdiction for
such court to transfer this Deed to another Qualified Organization having similar purposes that
agrees to assume the responsibility imposed on Grantee by this Deed, provided that Grantee and
Grantor receive notice of and an opportunity to participate in the court proceeding.
12. Transfer of the Property. Grantor shall notify Grantee in writing at least forty-five
(45) days prior to the transfer of the Property, and the document of conveyance shall expressly
refer to this Deed. Grantee shall have the right to record a document in the real property records in
Pitkin County to put such third parties on notice of the requirements of this paragraph, and of the
requirements of Paragraph 15. Failure to provide notice pursuant to this paragraph or such recorded
document shall not invalidate any transfer of the Property.
13. Amendment of Deed. This Deed may be amended only with the express prior
written consent of Grantee and Grantor by an instrument duly executed by Grantor and Grantee
recorded in the real property records of Pitkin County, Colorado. Any such amendment shall be
consistent with the purposes of this Deed and shall comply with § 170(h) of the IRC, or any
regulations promulgated thereunder. Any such amendment shall also be consistent with Colorado
Revised Statutes §38-30.5-101, et seq., or any regulations promulgated thereunder, and shall not
affect the duration of this Deed.
14. Condemnation or Other Extinguishment. If this easement is taken, in whole or in
part, by exercise of the power of eminent domain, or if circuunstances arise in the future that render
the purpose of this easement impossible to accomplish, this Deed can only be terminated or
extinguished, whether in whole or in part, by judicial proceedings in a court of competent
jurisdiction. Each party shall promptly notify the other party in writing when it first learns of such
circumstances. Grantee as purchaser shall be entitled to compensation in accordance with
applicable law, after the satisfaction of prior claims, from any sale, exchange, condemnation, or
other involuntary or voluntary conversion of all or any portion of the Property subsequent to such
termination or extinguishment. Pitkin County's compensation shall be an amount equal to the
easement value percentage listed in the Real Property Interest paragraph 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, but not including the value of structural
improvements added subsequent to this Deed. Pitkin County shall use such proceeds in a manner
consistent with the conservation purposes of this Deed.
15. Interpretation. This Deed shall be interpreted under the laws of the State of
Colorado, resolving any ambiguities and questions of the validity of specific provisions so as to
preserve the Conservation Values and give maximum effect to its conservation purposes.
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16. -Duration. The easement created by this Deed shall be effective upon issuance of the
County permits required to construct the Pitkin County Solar facility. The easement shall, at a
minimum, be a servitude for a term coterminous with the Special Use Permit for Pitkin County
Solar, LLC. Every provision of this Deed that applies to Grantor or Grantee shall also apply to
their respective agents, heirs, executors, administrators, assigns, and all other successors as their
interests may appear. A party's rights and obligations under this Deed terminate upon a permitted
transfer of the party's interest in this Deed or the Property, except that liability for acts or omissions
occurring prior to transfer shall survive transfer.
• 17. Notices. Any notices required by this Deed shall be in writing and shall be
personally delivered or sent by certified mail, return receipt requested, to Grantor, Grantee
respectively at the following addresses, unless a party has been notified by the other of a change
of address. Electronic delivery of notices shall also be deemed sufficient and considered
delivered upon receipt of confirmation of delivery on the part of the sender:
To Grantor:
Aspen Consolidated Sanitation District
565 North Mill Street
Aspen, Colorado 81611
To Grantee:
Board of County Commissioner of Pitkin County Colorado
c/o The Pitkin County Attorney's Office
530 East Main Street, Suite 301
Aspen, Colorado 81611
Email: attorney@pitkincounty.com
18. Grantor's Title Warranty. Grantor warrants that Grantor has good and sufficient title
to the Property and hereby promises to defend the same against all claims from persons claiming
by, through or under Grantor.
19. Grantor's Environmental Warranty and Indemnity. Grantor warrants that Grantor
has no actual knowledge of a release or threatened release of hazardous substances or wastes on
the Property and hereby promises to hold harmless, defend, and indemnify Grantee along with
their respective members, directors, officers, employees, agents, contractors, successors, and
assigns againstall litigation, claims, demands, penalties, and damages, including reasonable
attorneys' fees, arising from or connected with any past, present or future presence or release of
hazardous or toxic substances on, under, or about the Property. For the purposes hereof,
"Hazardous Substances" does not mean any typical agricultural chemicals such as herbicides
and pesticides utilized on properties of this type in Pitkin County, provided that all such
chemicals are used in accordance with applicable laws and manufacturer's specifications. Without
limiting the foregoing, nothing in this Deed shall be construed as giving rise to any right or ability
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in Grantee, nor shall 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.
20. Subsequent Liens on the Property. No provisions of this Deed should be construed
as impairing the ability of Grantor to use this Property as collateral for subsequent borrowing,
provided that any mortgage or lien arising from such a borrowing shall be subordinated to this
Deed.
21. No Merger. No merger shall be deemed to have occurred hereunder or under any
document executed in the future affecting this Deed, unless the parties expressly state that they
intend a merger of estates or interests to occur.
22. Recording. Grantee shall record this Deed in the official records of Pitkin County,
and may re-record it at any time as may be required to preserve Grantee' rights hereunder.
23. Subsequent Transfers. Grantor shall incorporate the teens and conditions of this
Deed in any deed or other legal instrument by which it divests itself of any interest in all or a
portion of the Property, including, without limitation, conveyance of a leasehold interest to a third
party. Grantor further agrees to give written notice to Grantee of the transfer of any interest at least
twenty (20) days prior to the date of such transfer. The failure of Grantors to perform any act
required by this paragraph shall not impair the validity of this Deed or limit its enforceability in
any way.
24. Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this easement shall be liberally construed in favor of the grant to affect the
purpose of this Deed and the policy and purpose of Colorado Revised Statutes §38-30.5-101, et
seq. If any provision in this instrument is found to be ambiguous, an interpretation consistent with
the purpose of this easement that would render the provision valid shall be favored over any
interpretation that would render it invalid.
25. Severability. If any provision of this Deed, or the application thereof to any person
or circumstance, is found to be invalid, the remainder of the provisions of this 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 not be affected thereby.
26. Entire Agreement. This instrument sets forth the entire agreement of 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.
27. No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of
Grantor's title in any respect.
4835-3630-4064.2
11
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28. _ Successors. The covenants, terms, conditions, and restrictions of this 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 for the term of this
Agreement.
29. Termination of Rights and Obligations. A party's rights and obligations under this
Deed 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.
30. 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.
31. Third Party Beneficiaries. This Deed is entered into by and between Grantor and
Grantee and does not create enforcement rights or responsibilities in any other third parties,
including the general public.
32. Acceptance. As attested by the signature of an authorized party affixed hereto,
Grantee hereby accepts, without reservation, the rights and responsibilities conveyed by this Deed.
Grantee acknowledge receipt and acceptance of this Deed encumbering the Property for which no
goods or services were provided.
33. Change of Conditions. A change in the potential economic value of any use that is
prohibited by or inconsistent with this easement, or a change in any current or future uses of
neighboring properties, shall not constitute a change in conditions that makes it impossible or
unpractical for continued use of the Property for conservation purposes and shall not constitute
grounds for terminating the Deed.
34. No Land Use Approvals Imputed to Deed. The Grantor shall be solely responsible
for compliance with applicable laws in regard to the exercise of rights reserved herein, and, nothing
contained in this Deed is intended to represent a permit or land use approval by Pitkin County.
IN WITNESS WHEREOF, Grantor and Grantee have executed this Easement as of the day
and year first above written.
4835-3630-4064.2
[Signatures on Following Pages]
12
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4835-3630-4064.2
PITKIN COUNTY:
BOARD OF COUNTY COMMISSIONERS,
PITKIN COUNTY, COLORADO, a body politic
By:
Name:
Title:
13
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4835-3630-4064.2
ACSD:
ASPEN CONSOLIDATED SANITATION
DISTRICT, a Colorado quasi -municipal
corporation and public entity
By:
Name:
Title:
14
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Exhibit A
Legal Description of the Property
A Tract of land for the purpose of a Conservation Easement, lying and situated in the Northeast Quarter
of Section 28, Township 9 South, Range 85 of the Sixth Principal Meridian, being a part of Government
Lot 1 of said Section, County of Pitkin, State of Colorado, said Tract more particularly described as
follows:
COMMENCING at the Northeast corner of said Section 28, also being the Northeast corner of said
Government Lot 1, monumented by a found 2-1/2 inch aluminum cap marked "D.B. & CO. PLS 27275
2002", from whence the North Quarter -corner of said Section 28, monumented by a found 3-1/4 inch cap
marked "CDOH PLS 17491" is assumed to bear South 89° 22' 16" West a ground distance of 2602.40
feet, and all bearings herein are relative thereto; thence South 89° 22' 16" West 440.00 feet on the North
line of said Section 28, also being the North line of said Government Lot 1, to the POINT OF BEGINNING
of said Tract; Thence departing said North line South 52° 36' 07" West 298.92 feet to a point; Thence
South 30° 29' 04" West 104.76 feet to a point; Thence South 06° 57' 02" West 37.65 feet to a point;
Thence South 28° 56' 29" East 43.05 feet to a point; Thence South 46° 12' 39" East 213.99 feet to a
point; Thence South 16° 00' 32" East 123.82 feet to a point; Thence South 33° 37' 18" East 63.70 feet to
a point on the South line of said Government Lot 1; Thence North 88° 25' 40" West 369.36 feet on said
South line to the centerline of Roaring Fork River as resolved by Colorado Department of Transportation
Right -of -Way plans for Project Number STR 0821-039 Unit 3, recorded in Survey Book 56 at Page 1 in
the Pitkin County Clerk and Recorder's office; Thence departing said South line and northerly on said
centerline the following four (4) courses and distances: 1) North 35° 15' 37" West 36.96 feet to a point; 2)
Thence North 39° 11' 20" West 268.42 feet to a point; 3) Thence North 09° 40' 45" East 125.45 feet to a
point; 4) Thence North 24° 44' 58" East 319.33 feet to a point on said North line of Section 28; Thence
departing said centerline North 89° 22' 16" East 455.86 feet on said North line to the POINT OF
BEGINNING, said Tract containing 239,581 square feet or 5.50002 acres.
4837-7040-9142.4
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Contract No. 193.20
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (hereinafter referred to as "Escrow: Agreement") is made and
entered into as of July 3 V, 2020, by and among (i) ASPEN CONSOLIDATED SANITATION
DISTRICT, a Colorado quasi -municipal corporation and public entity ("ACSD"), (ii) the BOARD OF
COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, a body corporate and politic,
("the County") and (iii) BAKER HOSTETLER LLP, an Ohio limited liability partnership (hereinafter
referred to as "Escrow Agent").
WHEREAS; ACSD applied for and received approval from the County for Special Review Use,
Activity Envelope and Site Plan review, and a Permit for an Activity of State Interest for the construction
of a. major facility of a public utility, for the construction of a 35 acre ground mounted solar project
("-Solar Project") on real property owned by ACSD, and the necessary approvals for construction are
reflected in Resolution No, 095-201.9 of the Board of County Commissioners. of Pitkin County, approved
and adopted November 13, 2019 and recorded in the real property records of Pitkin County on December
18, 20.19 at Reception No. 661280 ("Resolution"); and
WHEREAS, Condition # 5::to the Resolution requires ACSD to grant and record a conservation
easement dedicated to the County and to be managed by the County's Open Space and Trailsprogram on
that area of the ACSD Property that extends from the top of the slope down into the gorge of the Roaring
Fork River to the boundary the ACSD property in the riverbed; and
WHEREAS, ACSD originally acquired :the larger parcel .of real property through a grant from the
_Environmental Protection Agency ("EPA") under a Clean Water Act ("CWA") construction grant in
1977, and the property is subject to thetermsof that grant as evidence in terms and conditions,, set forth in
the Statement of Federal Interest in Land Purchased, with Federal Monies, for Ultimate Disposal Of
Wastewater Treatment Plant Discharges recorded in the real property records of Pitkin County on October
18, 1977 in Book 336 at Page 792; and
WHEREAS, the. County has requested and ACSD intends to grant a perpetual conservation
easement in the form approved by both. Parties ("Conservation : Easement") to the County to satisfy
Condition #5, but has become concerned that ACSD needs EPA approval to grant the Conservation
Easement in' perpetuity; and
WHEREAS, to facilitate 'a present grant of the Conservation :Easement, .the Parties- have ..agreed to
enter into this Escrow Agreement :and to place two versions of the conservation easement, one with a
perpetual term and one with a limited' term, into escrow for the benefit of the County and to be released
upon the'conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which is acknowledged hereby, the:parties hereto covenant
and agree as follows:
1. Appointment of Escrow Agent. ACSD and the County hereby appoint Baker Hostetler LLP as
Escrow Agent hereunder.
2. Delivery of Conservation Easements. ACSD and the County shall deliver two fully executed and
acknowledged versions of the Conservation Easement to Escrow Agent within sixty (60) days
from the date this Agreement is last executed by the parties. Version A of the Conservation
Easement, attached hereto as Exhibit A, is a grant of conservation easement in perpetuity.
Version B of the Conservation Easement attached hereto as Exhibit B, is a grant of conservation
1lIIllh1I1IIIl11l1IIlIlII IIItllhIIIlIIl 11hIIIIllhIIllhIIIItItIIlI1Il
RECEPTION# 669865, R: $0.00, D: $0.00
DOC CODE: AGREEMENT
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Janice K. Vos Caudill. Pitkin County, CO
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easement for a term that is coterminous with the Special Review Use Permit granted by the.
Resolution. In all other respects, the two versions of the Conservation Easement are identical.
Escrow Agent will hold the original, executed and acknowledged versions of both.
3. Conditions to and Release and Recordation of Conservation Easement.
a. .Satisfaction of .Conditions. Upon the execution of this Escrow Agreement, ACSD will
immediately commence good faith efforts to obtain approval of the .grant, in perpetuity, of the
Conservation Easement by ACSD to the County from the EPA. When ACSD receives either
EPA approval or EPA denial of same, ACSD will notify the County and Escrow Agent in
writing and forward any correspondence from EPA evidencing its determination within three
(3) business days of receipt of same.. ACSD shall provide the County notice of any
application, request, communication, and/or similar information between it and the EPA
regarding satisfaction of this condition 3.a. At Pitkin County's request, ACSD will share
such communications "subject to any reasonable claim to confidentially or need to redact
information in those communications.
b. Action by Escrow Agent. Upon receipt by Escrow Agent of notice from ACSD, the Escrow
Agent shall either:
i. if the EPA approves ACSD's grant of the Conservation Easement in perpetuity; then
Escrow Agent will: (a) record Version A of the Conservation Easement (grant in
perpetuity). in the real property .records of Pitkin County; (b) immediately destroy the
executed copy of Version 'B of the Conservation Easement in its possession; and (c)
circulate copies of the recorded Conservation Easement to ACSD and the County; or
ii. If the EPA does not approve ACSD's grant of the Conservation Easement in perpetuity,
then Escrow Agent will: (a) record Version B of the Conservation Easement
(Coterminous with Special Review Use Permit) in the real property records of Pitkin
County; (b) immediately destroy the executed copy of Version. A of the Conservation
Easement in its 'possession; and (c) circulate copies of the recorded Conservation
Easement to ACSD and the County.
4: Satisfaction of Condition #5 .to the. Resolution. Notwithstanding the requirement that fully
executed versions of the Conservation Easement will not be executed at_ the time of executing this
Escrow Agreement, the County and ACSD hereby agree that execution -of this Escrow Agreement
and the placing of the two unexecuted versions of the Conservation Easement into escrow
satisfies Condition #5 to the Resolution,. and after the execution of this Escrow Agreement and
placing of the two uneiteciited versions of the Conservation Easement into escrow, ACSD and its
lessees and assignees can proceed with development and construction of the Solar Project as
though Condition #5 had been fully performed, assuming all other conditions of approval are
satisfied when due.
5. Terms & Conditions of Escrow.
a. Escrow Agent Not Liable. The Parties agree that Escrow Agreement will not be liable to
any party with respect to (i) any action taken .or omitted to be taken in good faith relating to -
its duties and responsibilities under this agreement or (ii) any action taken or omitted to be
taken in reliance upon any document, including any written notice of instruction provided in
this Escrow Agreement, not only as to its due execution and the validity and effectiveness of
its provisions, but also the truth and accuracy of any information contained therein, which
4810-7442-6048.5
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Escrow Agent shall in good faith believe to be gennine, to have been signed or presented by a.
proper person or persons and to conform with the provisions of this. Escrow Agreement. The
Parties hereto hereby agree to indemnify and hold Escrow Agent absolutely harmless against
any and all. losses, Claims, damages, liabilities and expenses, :including without limitation,
costs, attorneys' fees and disbursements which may be imposed upon (**111Tpd by Escrow
Agent in connection with its serving as EscroW. Agent hereunder.
b. Disputes'. EscroW Agent is specifically authorized to refuse to act, except upon written
instructions signed by both parties and delivered as set forth herein. In the event of a dispute
between the parties hereto, sufficient in the sole discretion of the Escrow Agent to justify its
doing so, the Escrow Agent is entitled to tender unto the registry or custody of any court of
competent jurisdiction the both Versions of the Conservation Easement, together with such
legal .pleadings as it deems appropriateand thereupon be released and discharged.
AtithOrity. Each of the patties executing this agreement does hereby represent and Warrant
that such party has the full right and authority to enter into this Agreement, and thateach
person signing on behalf ofsuch party is duly authorized in the capacity shown.
d. NOtice, Any notices which May be permitted or required under the terms and provisions of
this Agreement shall be in writing and shall be deemed to have been duly given as of the date
and time the same are received by the parties to whom the. notices are sent. Any notice sent
by email must also be sent by another means of delivery provided herein within five (5) days
of delivery of the email notification but shall nonetheless be effective as of the date of the
delivery by email as provided herein. If any party provides for a copy (or .copies) of such
notice to be delivered as' set forth below, notice to such party shall be deemed given only in
the event such copy (or copies) are also deemed received. All notices shall be deemed
received upon hand delivery or delivery by FedEx or equivalent courier and evidenced by a
notation on the records of that courier that such notices were delivered'to the parties at the
• following addresses Or if sent by email; upon receipt of electronic confirmation that such
notices were delivered to the parties at the following entail addresses;
If to County;
Pitkin County
530 East ;Main Street, Suite 302
Aspen, Colorado 8 161 1
With o.coOy to:
Pitkin County Attorney's Office
530East Main Street, Suite 301
Aspen; Colorado 81611
attotneyopitkinconnty.cont
If to ACSD:
Aspen IConsolidated San District
565 North Mill Street
Aspen, Colorado 81611
With a copy to:
4810-7442-6048.5
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Robert L..Tibbals
P.O. Box 3112
Englewood, CO 80155-3112
thesti@hotmail.com
If to Escrow Agent:
Baker & Hostetler LLP
1801 California Street j Suite 4400
Denver, CO 80202-2662
etlark@bakerlaW.Com
e. Miscellaneous. The recitals to this Escrow Agreement are incorporated herein by this
reference and made a part hereof. This ES.,crow Agreement is governed by the law of the
State of Colorado. The provisions of this agreement inure to the benefit of and will be
binding upon the parties hereto and their respective successors, devisees and assigns, This
agreement may be executed in multiple 'counterparts, each of which shall constitute an
original, but all of which when taken together constitute one and the same agreeinent. This
Escrow Agreement may be electronically executed and delivered by email which email shall
constitute a binding and valid execution hereof.
IN WITNESS- WHEREOF, the parties hereto have caused their duly authorized officers to
execute this Escrow Agreement effective as of the date of the last paity to sign.
[Signatures on following pages]
4810-7442-6048.
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IN WITNESS WHEREOF, theundersigned have caused this instrument to be duly executed as of
the day and year first above Written.
PITKIN COUNTY:
BOARD OF COUNTY COMMISSIONERS, PITKIN
COUNTY, COLORADO, a body politic
S4even F. cLu
By:.
Name: steveh F. child
Title: Pitkin County Commissioner
4810-7442-6048.5
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ACSD:
ASPEN CONSOLIDATED SANITATION
DISTRICT, a Colorado quasi -municipal corporation
and public entity
By:.. :..
Name:
Title:
4810-7442-60485
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ESCROW AGENT:
BAKER HOSTETLER LLP, an Ohio limited liability
partnership
By:
Name: Eben P. Clark
Title: Counsel
Exhibits:
Exhibit A — Conservation Easement Version A — Perpetual Grant
Exhibit B — Conservation Easement Version B — Coterminous with Special Review Use Permit
4810-7442-6048.5
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Exhibit A
Conservation Easement Version A - Perpetual Grant
4810-7442-6048.5
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Recording requested by and return to:
PITKIN COUNTY OPEN SPACE & TRAILS
530 East Main Street, Suite 300
Aspen, CO 81611
DEED OF CONSERVATION EASEMENT
FOR THE ASPEN CONSOLIDATED SANITATION DISTRICT SOLAR SITE
THIS DEED OF CONSERVATION EASEMENT (the "Easement") is made and entered
into this day of , 2020 between the Aspen Consolidated Sanitation District, a Colorado
quasi -municipal corporation and public entity, having its address at 565 North Mill Street, Aspen,
Colorado 81611 (the "Grantor"), and the Board of County Commissioners of Pitkin County,
Colorado, a body corporate and politic, having its address at 530 East Main Street, Suite 301, Aspen,
Colorado 81611 (the "Grantee") (collectively, the "Parties").
The following exhibits are attached hereto:
Exhibit A: Legal Description of the Property
Exhibit B: Map of the Property
RECITALS:
A. Grantor is the record owner of that certain real property in Pitkin County, Colorado,
consisting of approximately 5.5 acres, which is more particularly described on Exhibit "A" attached
hereto and made a part hereof by this reference, and which is referred to herein as the "Property";
B. The Property possess natural, scenic, open space, wildlife, and recreational values
(collectively referred to as the "Conservation Values") of importance to Grantor, the Grantee, the
people of Pitkin County, and the people of the state of Colorado that worthy of preservation;
C. The Conservation Values of the Property are more particularly described in the
Baseline Documentation, described in Section 2 herein, and include the following conservation
purposes, the protection of which are recognized for qualified conservation contributions under
Section 170(h)(4)(A) of the Internal Revenue Code of 1986, as amended ("IRC"), and under Section
1.170A-14(d) of the Treasury regulations:
• Relatively Natural Habitat [§1.170A-14(d)(3)]: The Property contains oak shrublands,
riparian woodland, and aquatic habitat. The habitat on the Property is also "significant" as
required by the Treasury Regulations, as it represents high quality aquatic habitat. The
Property lies within the Roaring Fork at Brush Creek Potential Conservation Area (PCA) as
designated by the Colorado Natural Heritage Program for its high biodiversity significance.
• Open Space [§1.170A-14(d)(4)]: The Property qualifies as open space because it will be
preserved for the scenic enjoyment of the general public and is pursuant to a clearly delineated
governmental conservation policy. Conservation of the Property will further yield a
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significant public benefit.
Scenic Enjoyment — The conservation of river, riparian and native upland habitats on the
Property contribute to the scenic character of the area. The Jaffee River Trail travels along
the east side of the Roaring Fork River offering the general public access to the scenic native
riparian ecosystems. The contiguity with neighboring public land contributes to an expanse
of scenic open space offered to visitors and residents of Pitkin County.
Significant Public Benefit - Located adjacent to heavily developed areas of Pitkin County, the
Property provides a natural buffer adjacent the Roaring Fork River and the Jaffee River Trail
for wildlife and public enjoyment. Conservation of the Property allows the public to enjoy an
area that would otherwise be under pressure for development. There is a strong likelihood that
development of the Property would contribute to degradation of the scenic and natural
character of the area and would result in loss of high -quality natural habitat and could
negatively impact the river quality. Preservation of this Property continues to provide an
opportunity for the general public to appreciate its scenic, recreational and educational values
and protects important plant, wildlife and river habitat and continuity with other public land
and open spaces.
Recreation - The Property offers the public recreation opportunities in a scenic and natural
setting. The Property is encumbered by a fishing license that allows angler's access and the
Jaffee River Trail traverses the Property. Bikers, joggers and walkers, as well as anglers and
boaters wishing to access the Roaring Fork River, use this popular recreation trail. The river,
included in the Property, is a popular stretch providing Class IV whitewater for boaters and
fishing pockets for anglers. The Roaring Fork River is described as one of Colorado's premier
freestone trout fisheries. The conservation of this scenic river contributes to the state's leading
fishing waters that designate it a Gold Medal River just downstream of the Property north of
the confluence with the Fryingpan River. The recreation trail and fishing license allows the
public to visually access surrounding natural landscapes, enjoy wildlife, access the river and
provides educational opportunities through environmental educational organizations.
Governmental Policies - Conservation of the Property is promoted by the following local and
state governmental policies. The laws and regulations of the State of Colorado and the
United States also support conservation of the Property relative to its scenic, wildlife habitat,
agricultural heritage, educational and natural area values:
• Colorado Revised Statutes §§ 38-30.5-102 provide for the establishment of
conservation easements to maintain land "in a natural, scenic, or open condition, or
for wildlife habitat, or for agricultural...or other use or condition consistent with the
protection of open land, environmental quality or life -sustaining ecological
diversity."
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• The Colorado Wildlife and Parks and Outdoor Recreation statutes, Colorado
Revised Statutes §§ 33-1-101 and §§ 33-10-101, which provide, respectively, that
"it is the policy of the state of Colorado that the wildlife and their environment are
to be protected, preserved, enhanced, and managed for the use, benefit, and
enjoyment of the people of this state and its visitors" and that "it is the policy of the
state of Colorado that the natural, scenic, scientific, and outdoor recreation areas of
this state are to be -protected, preserved, enhanced, and managed for the use, benefit,
and enjoyment of the people of this state and visitors of this state."
• The Western Governors' Association Policy Resolution 08-21 supports "voluntary
incentive -based methods for preserving open space, maintaining land and water for
agricultural and timber production, wildlife and other values."
• Pitkin County addresses the need for protecting open space in its Horne Rule
Charter, which contains the Open Space and Trails Program's enabling legislation
under Article XIII. Criteria for open space acquisitions include: (1) Areas within
public scenic view planes; (2) Incorporating or protecting significant wildlife
habitat; (3) Protecting riparian or wetlands areas; (4) Protecting other public lands
from the impacts of development.
• The Pitkin County Land Use Code states that the preservation of wildlife habitat,
open space and agricultural operations conforms with Policies 2-120 (Scenic
Quality), 2-160 (Wildlife Management) and 2-240 (Compatibility with Agricultural
Lands and Operations), 2-280 (Compatibility with Public Lands), and 2-290
(Access to Public Lands).
• The Pitkin County Strategic Plan supports conserving the natural environment
within the Community Vision which is supported by Core Focus Areas including;
(1) Flourishing Natural and Built Enviromnent which states "Conserved natural
resources and environment" as a Success Factor; and (2) Livable and Supportive
Community which states "Access to recreation..." as a Success Factor.
NOW, THEREFORE, in consideration of the above and the mutual covenants,
terns, conditions, and restrictions contained herein, and pursuant to the laws of the State of
Colorado, and in. particular C.R.S. § 38-30.5-101 et seq., Grantor hereby voluntarily grants and
conveys to Grantee a conservation easement in gross in perpetuity over the Property, of the
nature and character and to the extent hereinafter set forth.
1. Purpose. It is the essential purpose of this Conservation Easement to preserve and
protect, in perpetuity of natural, ecological, open space, and scenic 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 Property will be preserved and protected forever.
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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. Baseline Documentation Report. A collection of baseline data on the Property and
its resources (the "Baseline Documentation") shall be prepared within one (1) year following
conveyance of this -Conservation Easement to Grantee. The data and explanatory text, photographs
and maps to be assembled in the Baseline Documentation is agreed by the parties hereto to provide
an accurate representation of the Property at the time of this grant, notwithstanding the fact that
the Baseline Documentation will be prepared after the effective date of this grant, and the parties
acknowledge that the Baseline Documentation will serve as an objective information baseline for
monitoring compliance with the terms of this Conservation Easement. Grantor shall bear the
expense of the preparation of the Baseline Documentation.
3. Rights of Grantee. To accomplish the purpose of this Deed the following rights are
conveyed to Grantee by this Deed:
A. To preserve and protect the Conservation Values of the Property;
B. To enter upon the Property at reasonable times in order to monitor Grantor's
compliance with the terms of this Deed; provided that such entry shall be upon prior
reasonable notice to Grantor, which shall typically be no less than forty-eight (48) hours
advance notice, and Grantee shall not unreasonably interfere with Grantor's use and quiet
enjoyment of the Property; and
C. To prevent any activity on or use of the Property that is inconsistent with the
purpose of this Deed and to require the restoration of such areas or features of the
Property that may be damaged by any inconsistent activity or use.
4. Permitted and Prohibited Uses. Grantor shall not perform, nor knowingly allow
others to perform, any act on or affecting the Property that is inconsistent with the covenants
herein. Grantor hereby authorizes Grantee to enforce these covenants in the manner described
below. However, unless otherwise specified, nothing in this Deed shall require Grantor to take any
action to restore the condition of the Property after any fire, change in climate, Act of God or other
event over which Grantor had no control. Grantor understands that nothing in this Deed relieves
them of any obligation or restriction on the use of the Property imposed by law.
A. Structures. The construction of any building or other structures or improvement
other than permitted under the terms of this Conservation Easement, is prohibited.
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B. 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 Parks and Wildlife ("CPW") 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.
C. 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.
D. Development Rights. Grantor hereby grants to Grantee all development rights
except as specifically reserved herein, and the parties agree that such rights are terminated
and extinguished and may not be used on or transferred off the Property to any other
property adjacent or otherwise.
E. Conservation Practices. Grantor recognizes the importance of good resource
management and stewardship to maintain the Conservation Values for present and future
generations. Grantor shall comply with and have responsibility for compliance of the
Property with the Colorado Noxious Weed Act and any other governmental noxious
weed control regulations.
F. Timber Harvesting. Trees may be cut to control insects and disease, to prevent
personal injury and property damage.
G. Mining. The commercial mining or extraction of soil, sand, gravel, oil, natural gas,
fuel, coal, or any other mineral substance owned by Grantor as of the date of this Deed
or later acquired by Grantor, using any surface mining method is prohibited.
H. Paving and Road Construction. No portion of the Property shall be paved or
otherwise be covered with concrete, asphalt, or any other paving material. No additional
road shall be constructed for access within the Property, for access to other adjacent
properties, or for other purposes, except for any unpaved road necessary for agricultural
production or any road reasonably required for agricultural purposes. After reasonable
notice to Grantee, any such road permitted by this paragraph shall be constructed in a
manner that does not substantially diminish or impair the Conservation Values of the
Property.
I. Trash. The dumping or accumulation of any kind of trash or refuse on the Property,
other than refuse produced on the Property, is strictly prohibited.
J. Recreational Uses and Improvements. No recreational building, structure or
improvement shall be built on the Property, including but not limited to, athletic fields,
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golf courses or ranges,- race tracks, airstrips, helicopter pads, or shooting ranges. Low -
impact recreational structures, defined as an improvement whose location, use and
construction which has negligible impact on the Property and does not degrade the
Conservation Values, such as benches, picnic tables, and interpretive signage for public
enjoyment and education are permitted. Use of the Property for more than "de minimis"
commercial recreation activity is prohibited. The term "de minimis" shall have the
meaning as set forth in § 203 1(c)(8)(B) of the IRC and the Treasury Regulations adopted
pursuant thereto. Non -motorized recreational uses are permitted only if they are (i) not
commercial, except as permitted by Paragraph 18; (ii) for Grantor and Grantor's invitees
only; and (iii) conducted in a manner that would not substantially diminish the
Conservation Values.
K. Motorized Vehicles. Motorized vehicles may only be used in a manner that does
not substantially diminish or impair the Conservation Values of the Property. There shall
be no off -road vehicle courses for snowmobiles, all -terrain vehicles, motorcycles, or
other motorized vehicles. Recreational use of motorized vehicles is prohibited.
L. Conunercial Uses. No industrial uses shall be allowed on the Property. Cormnercial
uses are allowed, as long as they are conducted in a manner that is consistent with
§ 170(h) of the IRC and the Treasury Regulations adopted pursuant thereto, are consistent
with the purposes of this Deed, and do not substantially diminish or impair the Property's
Conservation Values. Without limiting other potential conunercial uses that meet the
foregoing criteria, the following uses are allowed: processing or sale of farm or ranch
products predominantly grown or raised on the Property; home occupations conducted
by and in the home of a person residing on the Property; professional commercial
activities including, but not limited to, real estate brokerage, insurance, financial
planning, and the practice of law conducted by Grantor or related parties; and customary
rural enterprises, such as hunting, fishing, farm machinery repair, bed and breakfasts,
livestock veterinary services, and similar enterprises conducted by Grantor or by another
person residing on the Property.
M. Signage or Billboards. No commercial signs, billboards, awnings, or
advertisements shall be displayed or placed on the Property, except for appropriate signs
alerting the public to relevant regulations regarding public access and recreation. No
signs shall materially adversely affect the Conservation Values of the Property.
5. Rights Retained by Grantor. Subject to interpretation under Paragraph 14 titled
"Interpretation," as owners of the Property, Grantor retains the right to perform any act not
specifically prohibited or limited by this Deed. These ownership rights include, but are not limited
to, the right to exclude any member of the public from trespassing on the Property and the right to
sell or otherwise transfer the Property to anyone they choose.
6. Public Access. No right of access by the general public to any portion of the
Property is conveyed by this Easement. Grantor and Grantee acknowledge the general public
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shall have access to the property in accordance with the fishing license, recorded April, 21, 1992,
at reception number 343817 in the real property records of Pitkin County, Colorado (Fishing
License) and that the general public access the Fishing License area using the Jaffee River Trail
which originates on neighboring public open space. Grantee acknowledges that access is
consistent with this Easement and is consistent with Colorado's recreation use statute C.R.S. §33-
41-101 et seg.
- 7. Notice of Intention to Undertake Certain Permitted Actions. The purpose of
requiring Grantors to notify Grantee prior to undertaking certain permitted activities is to afford
Grantee an opportunity to ensure that the activities in question are designed and carried out in a
manner consistent with the purpose of this Deed. Whenever notice is required, Grantors shall
notify Grantee in writing not less than thirty (30) days prior to the date Grantors intend to undertake
the activity in question. The notice shall describe the nature, scope, design, location, timetable,
and any other material aspect of the proposed activity in sufficient detail to permit Grantee to make
an informed judgment as to its consistency with the purpose of this Deed.
8. Grantee's Approval. Where Grantee's approval is required, Grantee shall grant or
withhold its approval in writing within sixty (60) days of receipt of Grantor's written request
therefor. 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 Deed. Failure of Grantee
to respond within the required sixty (60) days shall not be deemed approval by Grantee.
9. Responsibilities of Grantor and Grantee Not Affected. Other than as specified
herein, this Deed is not intended to impose any legal or other responsibility on Grantee, or in any
way to affect any existing obligation of Grantor as owner of the Property. Among other things,
this shall apply to:
A. Taxes. Grantor shall continue to be solely responsible for payment of all
taxes, if any, and assessments before delinquency levied against the Property by competent
authority (collectively "taxes"). If Grantee are ever required to pay any taxes or assessments on its
interest in the Property, Grantor will reimburse Grantee for the same.
B. Upkeep and Maintenance. Grantor shall continue to be solely responsible
for the upkeep and maintenance of the Property, to the extent it inay be required by law. Grantee
shall have no obligation for the upkeep or maintenance of the Property.
C. Liability and Indemnification. If Grantee are ever required to defend
themselves from claims or are required by a court to pay damages resulting from personal injury
or property damage that occurs on the Property, Grantor shall indemnify and reimburse Grantee
for these payments, as well as for reasonable attorney's fees and other expenses of defending itself,
unless Grantee or any of their agents have committed a negligent or deliberate act that is
detennined by a court to be a cause of the injury or damage. In addition, Grantee may request
Grantor to warrant that Grantee are and will continue to be an additional insured on Grantor's
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liability insurance policy covering the Property. If so requested, Grantor shall provide certificates
of such insurance to Grantee upon reasonable request on an annual basis.
10. Enforcement. Grantee shall have the right to prevent and correct or require
correction of violations of the terms of this Deed. With reasonable advance notice to Grantor
(except in the case of any ongoing or imlinent violation, in which case such notice is not required),
Grantee may enter the Property for the purpose of inspecting for violations. If Grantee fords what
it believes is a violation, Grantee may, at its discretion, take appropriate legal action. Upon
discovery of any. such violation, the Grantee shall immediately notify Grantor in writing of the
alleged violation. The Grantee shall give Grantor sixty (60) days to correct the alleged violation
before filing any legal action. When an ongoing or imminent violation is causing material damage
to or could irreversibly diminish or impair the Conservation Values of the Property, Grantee may,
at its discretion, take appropriate legal action. If the parties cannot resolve the violation themselves,
the parties may mutually agree to an alternative method of dispute resolution, such as meditation.
If a court with jurisdiction determines that a violation may exist or has occurred, Grantee may
obtain an injunction to stop it, temporarily or permanently, in addition to such other relief as the
court deems appropriate. A court may also issue an injunction requiring Grantor to restore the
Property to its condition prior to the violation. In any case where a court finds that a violation has
occurred, Grantor shall reimburse Grantee for all its expenses incurred in stopping and correcting
the violation, including but not limited to reasonable attorneys' fees.
Any failure by Grantee to discover a violation or forbearance by the Grantee to exercise
their rights under this Deed in the event of any breach of any term of this Deed by Grantor shall
not be deemed or construed to be a waiver by Grantee of such term of any subsequent breach of
the same or any other term of this Deed or of any of Grantee's rights under this Deed. No delay or
omission by the Grantee in the exercise of any right or remedy upon any breach by the Grantor
shall impair such right or remedy or be construed as a waiver. The Grantor hereby waives any
defense available to the Grantor pursuant to Colorado Revised Statutes §38-41-119, or the defense
of laches, estoppel, or prescription.
11. Transfer of Easement; Requirement for Assignment or Enforcement.
A. Transfer by Grantee. With the prior written consent of Grantor (which
consent shall not be unreasonably withheld) Pitkin County shall have the right to transfer the
easement created by this Deed and to assign its rights thereunder to any private nonprofit
organization that, at the time of transfer, is a qualified organization under § 170(h) of the IRC, and
under Colorado Revised Statutes §38-30.5-101, et seq., (a "Qualified Organization"), expressly
agrees to assume the responsibility imposed on Grantee by this Deed and agrees that the
conservation purposes that this Deed is to advance continue to be carried out. Notwithstanding
anything in this paragraph to the contrary, this Deed shall not be transferred by Grantee to any
governmental entity or public agency without the consent of the Grantor, which consent shall be
in Grantor's sole discretion. If Grantee desires to transfer this Deed to a Qualified Organization
having similar purposes as Grantee, but Grantor refuses to approve the transfer, a court with
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jurisdiction shall transfer this Deed to another Qualified Organization having similar purposes and
mission as Grantee and -that agrees to assume the responsibility of enforcing this Deed, provided
that Grantor receive notice of and an opportunity to participate in the court proceeding.
B. Transfer by Judicial Process. If the Grantee ever ceases to exist, is no longer
a Qualified Organization, then the Deed shall be assigned to another Qualified Organization having
similar purposes that agrees to assume the responsibility imposed on Grantee by this Deed. If the
Grantee is no longer monitoring and enforcing the terms of this Deed to preserve and protect the
Conservation Values of the Property, then the Grantor may apply to a court with jurisdiction for
such court to transfer this Deed to another Qualified Organization having similar purposes that
agrees to assume the responsibility imposed on Grantee by this Deed, provided that Grantee and
Grantor receive notice of and an opportunity to participate in the court proceeding.
12. Transfer of the Property. Grantor shall notify Grantee in writing at least forty-five
(45) days prior to the transfer of the Property, and the document of conveyance shall expressly
refer to this Deed. Grantee shall have the right to record a document in the real property records in
Pitkin County to put such third parties on notice of the requirements of this paragraph, and of the
requirements of Paragraph 15. Failure to provide notice pursuant to this paragraph or such recorded
document shall not invalidate any transfer of the Property.
13. Amendment of Deed. This Deed may be amended only with the express prior
written consent of Grantee and Grantor by an instrument duly executed by Grantor and Grantee
recorded in the real property records of Pitkin County, Colorado. Any such amendment shall be
consistent with the purposes of this Deed and shall comply with § 170(h) of the IRC, or any
regulations promulgated thereunder. Any such amendment shall also be consistent with Colorado
Revised Statutes §38-30.5-101, et seq., or any regulations promulgated thereunder, and shall not
affect the perpetual duration of this Deed.
14. Condemnation or Other Extinguishment. If this easement is taken, in whole or in
part, by exercise of the power of eminent domain, or if circumstances arise in the future that render
the purpose of this easement impossible to accomplish, this Deed can only be terminated or
extinguished, whether in whole or in part, by judicial proceedings in a court of competent
jurisdiction. Each party shall promptly notify the other party in writing when it first learns of such
circumstances. Grantee as purchaser shall be entitled to compensation in accordance with
applicable law, after the satisfaction of prior claims, from any sale, exchange, condemnation, or
other involuntary or voluntary conversion of all or any portion of the Property subsequent to such
termination or extinguishment. Pitkin County's compensation shall be an amount equal to the
easement value percentage listed in the Real Property Interest paragraph 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, but not including the value of structural
improvements added subsequent to this Deed. Pitkin County shall use such proceeds in a manner
consistent with the conservation purposes of this Deed.
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15. Interpretation. This Deed shall be interpreted under the laws of the State of
Colorado, resolving any ambiguities and questions of the validity of specific provisions so as to
preserve the Conservation Values and give maximum effect to its conservation purposes.
16. Perpetual Duration. The easement created by this Deed shall be a servitude running
with the land in perpetuity. Every provision of this Deed that applies to Grantor or Grantee shall
also ..apply to their respective agents, heirs, executors, administrators, assigns, and all other
successors as their interests may appear. A party's rights and obligations under this Deed terminate
upon a permitted transfer of the party's interest in this Deed or the Property, except that liability
for acts or omissions occurring prior to transfer shall survive transfer.
17. Notices. Any notices required by this Deed shall be in writing and shall be
personally delivered or sent by certified mail, return receipt requested, to Grantor, Grantee
respectively at the following addresses, unless a party has been notified by the other of a change
of address. Electronic delivery of notices shall also be deemed sufficient and considered
delivered upon receipt of confirmation of delivery on the part of the sender:
To Grantor:
Aspen Consolidated Sanitation District
565 North Mill Street
Aspen, Colorado 81611
To Grantee:
Board of County Commissioner of Pitkin County Colorado
c/o The Pitkin County Attorney's Office
530 East Main Street, Suite 301
Aspen, Colorado 81611
Email: attorney@pitkincounty.com
18. Grantor's Title Warranty. Grantor warrants that Grantor has good and sufficient title
to the Property and hereby promises to defend the same against all claims from persons claiming
by, through or under Grantor.
19. Grantor's Environmental Warranty and Indemnity. Grantor warrants that Grantor
has no actual knowledge of a release or threatened release of hazardous substances or wastes on
the Property and hereby promises to hold harmless, defend, and indemnify Grantee along with
their respective members, directors, officers, employees, agents, contractors, successors, and
assigns against all litigation, claims, demands, penalties, and damages, including reasonable
attorneys' fees, arising from or connected with any past, present or future presence or release of
hazardous or toxic substances on, under, or about the Property. For the purposes hereof,
"Hazardous Substances" does not mean any typical agricultural chemicals such as herbicides
and pesticides utilized on properties of this type in Pitkin County, provided that all such
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chemicals are used in accordance with applicable laws and manufacturer's specifications. Without
limiting the foregoing, nothing in this Deed shall be construed as giving rise to any right or ability
in Grantee, nor shall 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.
20. Subsequent Liens on the Property. No provisions of this Deed should be construed
as impairing the ability of Grantor to use this Property as collateral for subsequent borrowing,
provided that any mortgage or lien arising from such a borrowing shall be subordinated to this
Deed.
21. No Merger. No merger shall be deemed to have occurred hereunder or under any
document executed in the future affecting this Deed, unless the parties expressly state that they
intend a merger of estates or interests to occur.
22. Recording. Grantee shall record this Deed in the official records of Pitkin County,
and may re-record it at any time as may be required to preserve Grantee' rights hereunder.
23. Subsequent Transfers. Grantor shall incorporate the terms and conditions of this
Deed in any deed or other legal instrument by which it divests itself of any interest in all or a
portion of the Property, including, without limitation, conveyance of a leasehold interest to a third
party. Grantor further agrees to give written notice to Grantee of the transfer of any interest at least
twenty (20) days prior to the date of such transfer. The failure of Grantors to perform any act
required by this paragraph shall not impair the validity of this Deed or limit its enforceability in
any way.
24. Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this easement shall be liberally construed in favor of the grant to affect the
purpose of this Deed and the policy and purpose of Colorado Revised Statutes §38-30.5-101, et
seq. If any provision in this instrument is found to be ambiguous, an interpretation consistent with
the purpose of this easement that would render the provision valid shall be favored over any
interpretation that would render it invalid.
25. Severability. If any provision of this Deed, or the application thereof to any person
or circumstance, is found to be invalid, the remainder of the provisions of this 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 not be affected thereby.
26. Entire Agreement. This instrument sets forth the entire agreement of 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.
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27. No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of
Grantor's title in any respect.
28. Successors. The covenants, terms, conditions, and restrictions of this 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.
29. Termination of Rights and Obligations. A party's rights and obligations under this
Deed 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.
30. 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.
31. Third Party Beneficiaries. This Deed is entered into by and between Grantor and
Grantee and does not create enforcement rights or responsibilities in any other third parties,
including the general public.
32. Acceptance. As attested by the signature of an authorized party affixed hereto,
Grantee hereby accepts, without reservation, the rights and responsibilities conveyed by this Deed.
Grantee acknowledge receipt and acceptance of this Deed encumbering the Property for which no
goods or services were provided.
33. Change of Conditions. A change in the potential economic value of any use that is
prohibited by or inconsistent with this easement, or a change in any current or future uses of
neighboring properties, shall not constitute a change in conditions that makes it impossible or
impractical for continued use of the Property for conservation purposes and shall not constitute
grounds for terminating the Deed.
34. No Land Use Approvals Imputed to Deed. The Grantor shall be solely responsible
for compliance with applicable laws in regard to the exercise of rights reserved herein, and, nothing
contained in this Deed is intended to represent a permit or land use approval by Pitkin County.
IN WITNESS WHEREOF, Grantor and Grantee have executed this Easement as of the day
and year first above written.
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[Signatures on Following Pages]
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4837-7040-9142.4
PITKIN COUNTY:
BOARD OF COUNTY COMMISSIONERS,
PITKIN COUNTY, COLORADO, a body politic
By:
Name:
Title:
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4837-7040-9142.4
ACSD:
ASPEN CONSOLIDATED SANITATION
DISTRICT, a Colorado quasi -municipal
corporation and public entity
By:
Name:
Title:
14
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Exhibit A
Legal Description of the Property
A Tract of land for the purpose of a Conservation Easement, lying and situated in the Northeast Quarter
of Section 28, Township 9 South, Range 85 of the Sixth Principal Meridian, being a part of Government
Lot-1 of said Section, County of Pitkin, State of Colorado, said Tract more particularly described as
follows:
COMMENCING at the Northeast corner of said Section 28, also being the Northeast corner of said
Govemment Lot 1, monumented by a found 2-1/2 inch aluminum cap marked "D.B. & CO. PLS 27275
2002", from whence the North Quarter -corner of said Section 28, monumented by a found 3-1/4 inch cap
marked "CDOH PLS 17491" is assumed to bear South 89° 22' 16" West a ground distance of 2602.40
feet, and all bearings herein are relative thereto; thence South 89° 22' 16" West 440.00 feet on the North
line of said Section 28, also being the North line of said Government Lot 1, to the POINT OF BEGINNING
of said Tract; Thence departing said North line South 52° 36' 07" West 298.92 feet to a point; Thence
South 30° 29' 04" West 104.76 feet to a point; Thence South 06° 57' 02" West 37.65 feet to a point;
Thence South 28° 56' 29" East 43.05 feet to a point; Thence South 46° 12' 39" East 213.99 feet to a
point; Thence South 16° 00' 32" East 123.82 feet to a point; Thence South 33° 37' 18" East 63.70 feet to
a point on the South line of said Government Lot 1; Thence North 88° 25' 40" West 369.36 feet on said
South line to the centerline of Roaring Fork River as resolved by Colorado Department of Transportation
Right -of -Way plans for Project Number STR 0821-039 Unit 3, recorded in Survey Book 56 at Page 1 in
the Pitkin County Clerk and Recorder's office; Thence departing said South line and northerly on said
centerline the following four (4) courses and distances: 1) North 35° 15' 37" West 36.96 feet to a point; 2)
Thence North 39° 11' 20" West 268.42 feet to a point; 3) Thence North 09° 40' 45" East 125.45 feet to a
point; 4) Thence North 24° 44' 58" East 319.33 feet to a point on said North line of Section 28; Thence
departing said centerline North 89° 22' 16" East 455.86 feet on said North line to the POINT OF
BEGINNING, said Tract containing 239,581 square feet or 5.50002 acres.
4837-7040-9142.4
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RECEPTION#: 669865, 10/27/2020 at 12:26:19 PM, Pgs 24 of 41, Janice K. Vos Caudill, Pitkin County, CO
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RECEPTION#: 669865, 10/27/2020 at 12:26:19 PM, Pgs 25 of 41, Janice K. Vos Caudill, Pitkin County, CO
Exhibit B
Conservation Easement Version B Coterminous with Special Use. Permit
4810-7442-6048.5
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Recording requested by and return to:
PITKIN COUNTY OPEN SPACE & TRAILS
530 East Main Street, Suite 300
Aspen, CO 81611
DEED OF CONSERVATION EASEMENT
FOR THE ASPEN CONSOLIDATED SANITATION DISTRICT SOLAR SITE
THIS DEED OF CONSERVATION EASEMENT (the "Easement") is made and entered
into this _ day of , 2020 between the Aspen Consolidated Sanitation District, 565 North
Mill Street, Aspen, Colorado 81611 (the "Grantor"), and the Board of County Commissioners of
Pitkin County, Colorado, a body corporate and politic, having its address at 530 East Main Street,
Suite 301, Aspen, Colorado 81611 (the "Grantee") (collectively, the "Parties").
The following exhibits are attached hereto:
Exhibit A: Legal Description of the Property
Exhibit B: Map of the Property
RECITALS:
A. Grantor is the record owner of that certain real property in Pitkin County, Colorado,
consisting of approximately 5.5 acres, which is more particularly described on Exhibit "A" attached
hereto and made a part hereof by this reference, and which is referred to herein as the "Property";
B. The Property possess natural, scenic, open space, wildlife, and recreational values
(collectively referred to as the "Conservation Values") of importance to Grantor, the Grantee, the
people of Pitkin County, and the people of the state of Colorado that worthy of preservation;
C. The Conservation Values of the Property are more particularly described in the
Baseline Documentation, described in Section 2 herein, and include the following conservation
purposes, the protection of which are recognized for qualified conservation contributions under
Section 170(h)(4)(A) of the Internal Revenue Code of 1986, as amended ("IRC"), and under Section
1.170A-14(d) of the Treasury regulations:
• Relatively Natural Habitat [§1.170A-14(d)(3)]: The Property contains oak shrublands,
riparian woodland, and aquatic habitat. The habitat on the Property is also "significant" as
required by the Treasury Regulations, as it represents high quality aquatic habitat. The
Property lies within the Roaring Fork at Brush Creek Potential Conservation Area (PCA) as
designated by the Colorado Natural Heritage Program for its high biodiversity significance.
• Open Space [§1.170A-14(d)(4)]: The Property qualifies as open space because it will be
preserved for the scenicenjoyment of the general public and is pursuant to a clearly delineated
governmental conservation policy. Conservation of the Property will further yield a
significant public benefit.
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Scenic Enjoyment — The conservation of river, riparian and native upland habitats on the
Property contribute to the scenic character of the area. The Jaffee River Trail travels along
the east side of the Roaring Fork River offering the general public access to the scenic native
riparian ecosystems. The contiguity with neighboring public land contributes to an expanse
of scenic open space offered to visitors and residents of Pitkin County.
Significant Public Benefit - Located adjacent to heavily developed areas of Pitkin County, the
Property provides a -natural buffer adjacent the Roaring Fork River and the Jaffee River Trail
for wildlife and public enjoyment. Conservation of the Property allows the public to enjoy an
area that would otherwise be under pressure for development. There is a strong likelihood that
development of the Property would contribute to degradation of the scenic and natural
character of the area and would result in loss of high -quality natural habitat and could
negatively impact the river quality. Preservation of this Property continues to provide an
opportunity for the general public to appreciate its scenic, recreational and educational values
and protects important plant, wildlife and river habitat and continuity with other public land
and open spaces.
Recreation - The Property offers the public recreation opportunities in a scenic and natural
setting. The Property is encumbered by a fishing license that allows angler's access and the
Jaffee River Trail traverses the Property. Bikers, joggers and walkers, as well as anglers and
boaters wishing to access the Roaring Fork River, use this popular recreation trail. The river,
included in the Property, is a popular stretch providing Class IV whitewater for boaters and
fishing pockets for anglers. The Roaring Fork River is described as one of Colorado's premier
freestone trout fisheries. The conservation of this scenic river contributes to the state's leading
fishing waters that designate it a Gold Medal River just downstream of the Property north of
the confluence with the Fryingpan River. The recreation trail and fishing license allows the
public to visually access surrounding natural landscapes, enjoy wildlife, access the river and
provides educational opportunities through environmental educational organizations.
Governmental Policies - Conservation of the Property is promoted by the following local and
state governmental policies. The laws and regulations of the State of Colorado and the
United States also support conservation of the Property relative to its scenic, wildlife habitat,
agricultural heritage, educational and natural area values:
• Colorado Revised Statutes §§ 38-30.5-102 provide for the establishment of
conservation easements to maintain land "in a natural, scenic, or open condition, or
for wildlife habitat, or for agricultural...or other use or condition consistent with the
protection of open land, environmental quality or life -sustaining ecological
diversity."
• The Colorado Wildlife and Parks and Outdoor Recreation statutes, Colorado
Revised Statutes §§ 33-1-101 and §§ 33-10-101, which provide, respectively, that
4835-3630-4064.2
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"it is the policy of the state of Colorado that the wildlife and their environment are
to be protected, preserved, enhanced, and managed for the use, benefit, and
enjoyment of the people of this state and its visitors" and that "it is the policy of the
state of Colorado that the natural, scenic, scientific, and outdoor recreation areas of
this state are to be protected, preserved, enhanced, and managed for the use, benefit,
and enjoyment of the people of this state and visitors of this state."
• The Western Governors' Association Policy Resolution 08-21 supports "voluntary
incentive -based methods for preserving open space, maintaining land and water for
agricultural and timber production, wildlife and other values."
• Pitkin County addresses the need for protecting open space in its Home Rule
Charter, which contains the Open Space and Trails Program's enabling legislation
under Article XIII. Criteria for open space acquisitions include: (1) Areas within
public scenic view planes; (2) Incorporating or protecting significant wildlife
habitat; (3) Protecting riparian or wetlands areas; (4) Protecting other public lands
from the impacts of development.
• The Pitkin County Land Use Code states that the preservation of wildlife habitat,
open space and agricultural operations conforms with Policies 2-120 (Scenic
Quality), 2-160 (Wildlife Management) and 2-240 (Compatibility with Agricultural
Lands and Operations), 2-280 (Compatibility with Public Lands), and 2-290
(Access to Public Lands).
• The Pitkin County Strategic Plan supports conserving the natural environment
within the Community Vision which is supported by Core Focus Areas including;
(1) Flourishing Natural and Built Environment which states "Conserved natural
resources and environment" as a Success Factor; and (2) Livable and Supportive
Community which states "Access to recreation..." as a Success Factor.
NOW, THEREFORE, in consideration of the above and the mutual covenants,
terms, conditions, and restrictions contained herein, and pursuant to the laws of the State of
Colorado, and in particular C.R.S. § 38-30.5-101 et seq., Grantor hereby voluntarily grants and
conveys to Grantee a long-term conservation easement in gross over the Property, of the nature
and character and to the extent hereinafter set forth.
1. Purpose. It is the essential purpose of this Conservation Easement to preserve and
protect natural, ecological, open space, and scenic 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 Property will be preserved and protected in the long-term. 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
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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. Baseline Documentation Report. A collection of baseline data on the Property and
its resources (the "Baseline Documentation") shall be prepared within one (1) year following
conveyance of this Conservation Easement to Grantee. The data and explanatory text, photographs
and maps to be assembled in the Baseline Documentation is agreed by the parties hereto to provide
an accurate representation of the Property at the time of this grant, notwithstanding the fact that
the Baseline Documentation will be prepared after the effective date of this grant, and the parties
acknowledge that the Baseline Documentation will serve as an objective information baseline for
monitoring compliance with the terms of this Conservation Easement. Grantor shall bear the
expense of the preparation of the Baseline Documentation.
3. Rights of Grantee. To accomplish the purpose of this Deed the following rights are
conveyed to Grantee by this Deed:
A. To preserve and protect the Conservation Values of the Property;
B. To enter upon the Property at reasonable tunes in order to monitor Grantor's
compliance with the terms of this Deed; provided that such entry shall be upon prior
reasonable notice to Grantor, which shall typically be no less than forty-eight (48) hours
advance notice, and Grantee shall not unreasonably interfere with Grantor's use and quiet
enjoyment of the Property; and
C. To prevent any activity on or use of the Property that is inconsistent with the
purpose of this Deed and to require the restoration of such areas or features of the
Property that may be damaged by any inconsistent activity or use.
4. Permitted and Prohibited Uses. Grantor shall not perform, nor knowingly allow
others to perform, any act on or affecting the Property that is inconsistent with the covenants
herein. Grantor hereby authorizes Grantee to enforce these covenants in the manner described
below. However, unless otherwise specified, nothing in this Deed shall require Grantor to take any
action to restore the condition of the Property after any fire, change in climate, Act of God or other
event over which Grantor had no control. Grantor understands that nothing in this Deed relieves
them of any obligation or restriction on the use of the Property imposed by law.
A. Structures. The construction of any building or other structures or improvement
other than permitted under the terms of this Conservation Easement, is prohibited.
B. 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 Parks and Wildlife ("CPW") guidelines
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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.
C. 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.
D. Development Rights. .Grantor hereby grants to Grantee all development rights
except as specifically reserved herein, and the parties agree that such rights are terminated
and extinguished and may not be used on or transferred off the Property to any other
property adjacent or otherwise.
E. Conservation Practices. Grantor recognizes the importance of good resource
management and stewardship to maintain the Conservation Values for present and future
generations. Grantor shall comply with and have responsibility for compliance of the
Property with the Colorado Noxious Weed Act and any other govermnental noxious
weed control regulations.
F. Timber Harvesting. Trees may be cut to control insects and disease, to prevent
personal injury and property damage.
G. Mining. The commercial mining or extraction of soil, sand, gravel, oil, natural gas,
fuel, coal, or any other mineral substance owned by Grantor as of the date of this Deed
or later acquired by Grantor, using any surface mining method is prohibited.
H. Paving and Road Construction. No portion of the Property shall be paved or
otherwise be covered with concrete, asphalt, or any other paving material. No additional
road shall be constructed for access within the Property, for access to other adjacent
properties, or for other purposes, except for any unpaved road necessary for agricultural
production or any road reasonably required for agricultural purposes. After reasonable
notice to Grantee, any such road permitted by this paragraph shall be constructed in a
manner that does not substantially diminish or impair the Conservation Values of the
Property.
I. Trash. The dumping or accumulation of any kind of trash or refuse on the Property,
other than refuse produced on the Property, is strictly prohibited.
J. Recreational Uses and Improvements. No recreational building, structure or
improvement shall be built on the Property, including but not limited to, athletic fields,
golf courses or ranges, race tracks, airstrips, helicopter pads, or shooting ranges. Low -
impact recreational structures, defined as an improvement whose location, use and
construction which has negligible impact on the Property and does not degrade the
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Conservation Values, such as benches, picnic tables, and interpretive signage for public
enjoyment and education are permitted. Use of the Property for more than "de ininiinis"
commercial recreation activity is prohibited. The term "de minimis" shall have the
meaning as set forth in § 2031(c)(8)(B) of the IRC and the Treasury Regulations adopted
pursuant thereto. Non -motorized recreational uses are permitted only if they are (i) not
coimmercial, except as permitted by Paragraph 18; (ii) for Grantor and Grantor's invitees
only; and (iii) conducted in a manner that would not substantially diminish the
Conservation Values.
K. Motorized Vehicles. Motorized vehicles may only be used in a manner that does
not substantially diminish or impair the Conservation Values of the Property. There shall
be no off -road vehicle courses for snowmobiles, all -terrain vehicles, motorcycles, or
other motorized vehicles. Recreational use of motorized vehicles is prohibited.
L. Commercial Uses. No industrial uses shall be allowed on the Property. Commercial
uses are allowed, as long as they are conducted in a manner that is consistent with
§ 170(h) of the IRC and the Treasury Regulations adopted pursuant thereto, are consistent
with the purposes of this Deed, and do not substantially diminish or impair the Property's
Conservation Values. Without limiting other potential commercial uses that meet the
foregoing criteria, the following uses are allowed: processing or sale of farm or ranch
products predominantly grown or raised on the Property; home occupations conducted
by and in the home of a person residing on the Property; professional commercial
activities including, but not limited to, real estate brokerage, insurance, financial
planning, and the practice of law conducted by Grantor or related parties; and customary
rural enterprises, such as hunting, fishing, farm machinery repair, bed and breakfasts,
livestock veterinary services, and similar enterprises conducted by Grantor or by another
person residing on the Property.
M. Signage or Billboards. No commercial signs, billboards, awnings, or
advertisements shall be displayed or placed on the Property, except for appropriate signs
alerting the public to relevant regulations regarding public access and recreation. No
signs shall materially adversely affect the Conservation Values of the Property.
5. Rights Retained by Grantor. Subject to interpretation under Paragraph 14 titled
"Interpretation," as owners of the Property, Grantor retains the right to perform any act not
specifically prohibited or limited by this Deed. These ownership rights include, but are not limited
to, the right to exclude any member of the public from trespassing on the Property and the right to
sell or otherwise transfer the Property to anyone they choose.
6. Public Access. No right of access by the general public to any portion of the
Property is conveyed by this Easement. Grantor and Grantee acknowledge the general public
shall have access to the property in accordance with the fishing license, recorded April, 21, 1992,
at reception number 343817 in the real property records of Pitkin County, Colorado (Fishing
License) and that the general public access the Fishing License area using the Jaffee River Trail
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which originates on neighboring public open space. Grantee acknowledges that access is
consistent with this Easement and is consistent with Colorado's recreation use statute C.R.S. §33-
41-101 et seq.
_ _ 7. Notice of Intention to Undertake Certain Permitted Actions. The purpose of
requiring Grantors to notify Grantee prior to undertaking certain permitted activities is to afford
Grantee -an opportunity to ensure that the activities in question are designed and carried out in a
manner consistent -with the purpose of this Deed. Whenever notice is required, Grantors shall
notify Grantee in writing not less than thirty (30) days prior to the date Grantors intend to undertake
the activity in question. The notice shall describe the nature, scope, design, location, timetable,
and any other material aspect of the proposed activity in sufficient detail to permit Grantee to make
an informed judgment as to its consistency with the purpose of this Deed.
8. Grantee's Approval. Where Grantee's approval is required, Grantee shall grant or
withhold its approval in writing within sixty (60) days of receipt of Grantor's written request
therefor. 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 Deed. Failure of Grantee
to respond within the required sixty (60) days shall not be deemed approval by Grantee.
9. Responsibilities of Grantor and Grantee Not Affected. Other than as specified
herein, this Deed is not intended to impose any legal or other responsibility on Grantee, or in any
way to affect any existing obligation of Grantor as owner of the Property. Among other things,
this shall apply to:
A. Taxes. Grantor shall continue to be solely responsible for payment of all
taxes, if any, and assessments before delinquency levied against the Property by competent
authority (collectively "taxes"). If Grantee are ever required to pay any taxes or assessments on its
interest in the Property, Grantor will reimburse Grantee for the same.
B. Upkeep and Maintenance. Grantor shall continue to be solely responsible
for the upkeep and maintenance of the Property, to the extent it may be required by law. Grantee
shall have no obligation for the upkeep or maintenance of the Property.
C. Liability and Indemnification. If Grantee are ever required to defend
themselves from claims or are required by a court to pay damages resulting from personal injury
or property damage that occurs on the Property, Grantor shall indemnify and reimburse Grantee
for these payments, as well as for reasonable attorney's fees and other expenses of defending itself,
unless Grantee or any of their agents have committed a negligent or deliberate act that is
determined by a court to be a cause of the injury or damage. In addition, Grantee may request
Grantor to warrant that Grantee are and will continue to be an additional insured on Grantor's
liability insurance policy covering the Property. If so requested, Grantor shall provide certificates
of such insurance to Grantee upon reasonable request on an annual basis.
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10. Enforcement. Grantee shall have the right to prevent and correct or require
correction of violations of the terns of this Deed. With reasonable advance notice to Grantor
(except in the case of any ongoing or imminent violation, in which case such notice is not required),
Grantee may enter the Property for the purpose of inspecting for violations. If Grantee finds what
it believes is a violation, Grantee may, at its discretion, take appropriate legal action. Upon
discovery of any such violation, the Grantee shall immediately notify Grantor in writing of the
alleged violation. The Grantee shall give Grantor sixty (60) days to correct the alleged violation
before filing any legal action. When an ongoing or imminent violation is causing material damage
to or could irreversibly diminish or impair the Conservation Values of the Property, Grantee may,
at its discretion, take appropriate legal action. If the parties cannot resolve the violation themselves,
the parties may mutually agree to an alternative method of dispute resolution, such as meditation.
If a court with jurisdiction determines that a violation may exist or has occurred, Grantee may
obtain an injunction to stop it, temporarily or permanently, in addition to such other relief as the
court deems appropriate. A court may also issue an injunction requiring Grantor to restore the
Property to its condition prior to the violation. In any case where a court finds that a violation has
occurred, Grantor shall reimburse Grantee for all its expenses incurred in stopping and correcting
the violation, including but not limited to reasonable attorneys' fees.
Any failure by Grantee to discover a violation or forbearance by the Grantee to exercise
their rights under this Deed in the event of any breach of any term of this Deed by Grantor shall
not be deemed or construed to be a waiver by Grantee of such term of any subsequent breach of
the same or any other term of this Deed or of any of Grantee's rights under this Deed. No delay or
omission by the Grantee in the exercise of any right or remedy upon any breach by the Grantor
shall impair such right or remedy or be construed as a waiver. The Grantor hereby waives any
defense available to the Grantor pursuant to Colorado Revised Statutes §38-41-119, or the defense
of laches, estoppel, or prescription.
11. Transfer of Easement; Requirement for Assigmnent or Enforcement.
A. Transfer by Grantee. With the prior written consent of Grantor (which
consent shall not be unreasonably withheld) Pitkin County shall have the right to transfer the
easement created by this Deed and to assign its rights thereunder to any private nonprofit
organization that, at the time of transfer, is a qualified organization under § 170(h) of the IRC, and
under Colorado Revised Statutes §38-30.5-101, et seq., (a "Qualified Organization"), expressly
agrees to assume the responsibility imposed on Grantee by this Deed and agrees that the
conservation purposes that this Deed is to advance continue to be carried out. Notwithstanding
anything in this paragraph to the contrary, this Deed shall not be transferred by Grantee to any
governmental entity or public agency without the consent of the Grantor, which consent shall be
in Grantor's sole discretion. If Grantee desires to transfer this Deed to a Qualified Organization
having similar purposes as Grantee, but Grantor refuses to approve the transfer, a court with
jurisdiction shall transfer this Deed to another Qualified Organization having similar purposes and
mission as Grantee and that agrees to assume the responsibility of enforcing this Deed, provided
that Grantor receive notice of and an opportunity to participate in the court proceeding.
4835-3630-4064.2
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B. Transfer by Judicial Process. If the Grantee ever ceases to exist, is no longer
a Qualified Organization, then the Deed shall be assigned to another Qualified Organization having
similar purposes that agrees to assume the responsibility imposed on Grantee by this Deed. If the
Granteeis no- longer monitoring and enforcing the terms of this Deed to preserve and protect the
Conservation Values of the Property, then the Grantor may apply to a court with jurisdiction for
such court to transfer this Deed to another Qualified Organization having similar purposes that
agrees to assume the responsibility imposed on Grantee by this Deed, provided that Grantee and
Grantor receive notice of and an opportunity to participate in the court proceeding.
12. Transfer of the Property. Grantor shall notify Grantee in writing at least forty-five
(45) days prior to the transfer of the Property, and the document of conveyance shall expressly
refer to this Deed. Grantee shall have the right to record a document in the real property records in
Pitkin County to put such third parties on notice of the requirements of this paragraph, and of the
requirements of Paragraph 15. Failure to provide notice pursuant to this paragraph or such recorded
document shall not invalidate any transfer of the Property.
13. Amendment of Deed. This Deed may be amended only with the express prior
written consent of Grantee and Grantor by an instrument duly executed by Grantor and Grantee
recorded in the real property records of Pitkin County, Colorado. Any such amendment shall be
consistent with the purposes of this Deed and shall comply with § 170(h) of the IRC, or any
regulations promulgated thereunder. Any such amendment shall also be consistent with Colorado
Revised Statutes §38-30.5-101, et seq., or any regulations promulgated thereunder, and shall not
affect the duration of this Deed.
14. Condemnation or Other Extinguishment. If this easement is taken, in whole or in
part, by exercise of the power of eminent domain, or if circumstances arise in the future that render
the purpose of this easement impossible to accomplish, this Deed can only be terminated or
extinguished, whether in whole or in part, by judicial proceedings in a court of competent
jurisdiction. Each party shall promptly notify the other party in writing when it first learns of such
circumstances. Grantee as purchaser shall be entitled to compensation in accordance with
applicable law, after the satisfaction of prior claims, from any sale, exchange, condemnation, or
other involuntary or voluntary conversion of all or any portion of the Property subsequent to such
termination or extinguishment. Pitkin County's compensation shall be an amount equal to the
easement value percentage listed in the Real Property Interest paragraph 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, but not including the value of structural
improvements added subsequent to this Deed. Pitkin County shall use such proceeds in a manner
consistent with the conservation purposes of this Deed.
15. Interpretation. This Deed shall be interpreted under the laws of the State of
Colorado, resolving any ambiguities and questions of the validity of specific provisions so as to
preserve the Conservation Values and give maximum effect to its conservation purposes.
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16. Duration. The easement created by this Deed shall be effective upon issuance of the
County permits required to construct the Pitkin County Solar facility. The easement shall, at a
minimum, be a servitude for a term coterminous with the Special Use Permit for Pitkin County
Solar, LLC. Every provision of this Deed that applies to Grantor or Grantee shall also apply to
their respective agents, heirs, executors, administrators, assigns, and all other successors as their
interests may appear. A party's rights and obligations under this Deed terminate upon a permitted
transfer of the party's interest in this Deed or the Property, except that liability for acts or omissions
occurring prior to transfer shall survive transfer.
17. Notices. Any notices required by this Deed shall be in writing and shall be
personally delivered or sent by certified mail, return receipt requested, to Grantor, Grantee
respectively at the following addresses, unless a party has been notified by the other of a change
of address. . Electronic delivery of notices shall also be deemed sufficient and considered
delivered upon receipt of confirmation of delivery on the part of the sender:
To Grantor:
Aspen Consolidated Sanitation District
565 North Mill Street
Aspen, Colorado 81611
To Grantee:
Board of County Commissioner of Pitkin County Colorado
c/o The Pitkin County Attorney's Office
530 East Main Street, Suite 301
Aspen, Colorado 81611
Email: attorney@pitkincounty.com
18. Grantor's Title Warranty. Grantor warrants that Grantor has good and sufficient title
to the Property and hereby promises to defend the same against all claims from persons claiming
by, through or under Grantor.
19. Grantor's Environmental Warranty and Indemnity. Grantor warrants that Grantor
has no actual knowledge of a release or threatened release of hazardous substances or wastes on
the Property and hereby promises to hold harmless, defend, and indemnify Grantee along with
their respective members, directors, officers, employees, agents, contractors, successors, and
assigns against all litigation, claims, demands, penalties, and damages, including reasonable
attorneys' fees, arising from or connected with any past, present or future presence or release of
hazardous or toxic substances on, under, or about the Property. For the purposes hereof,
"Hazardous Substances" does not mean any typical agricultural chemicals such as herbicides
and pesticides utilized on properties of this type in Pitkin County, provided that all such
chemicals are used in accordance with applicable laws and manufacturer's specifications. Without
limiting the foregoing, nothing in this Deed shall be construed as giving rise to any right or ability
4835-3630-4064.2
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in Grantee, nor shall 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 Enviromnental Response, Compensation
and Liability Act of 1980, as amended.
20. Subsequent Liens on the Property. No provisions of this Deed should be construed
as impairing the ability of Grantor to use this Property as collateral for subsequent borrowing,
provided that any mortgage or lien arising from such a borrowing shall be subordinated to this
Deed.
21. No Merger. No merger shall be deemed to have occuiTed hereunder or under any
document executed in the future affecting this Deed, unless the parties expressly state that they
intend a merger of estates or interests to occur.
22. Recording. Grantee shall record this Deed in the official records of Pitkin County,
and may re-record it at any time as may be required to preserve Grantee' rights hereunder.
23. Subsequent Transfers. Grantor shall incorporate the terns and conditions of this
Deed in any deed or other legal instrument by which it divests itself of any interest in all or a
portion of the Property, including, without limitation, conveyance of a leasehold interest to a third
party. Grantor further agrees to give written notice to Grantee of the transfer of any interest at least
twenty (20) days prior to the date of such transfer. The failure of Grantors to perform any act
required by this paragraph shall not impair the validity of this Deed or limit its enforceability in
any way.
24. Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this easement shall be liberally construed in favor of the grant to affect the
purpose of this Deed and the policy and purpose of Colorado Revised Statutes §38-30.5-101, et
seq. If any provision in this instrument is found to be ambiguous, an interpretation consistent with
the purpose of this easement that would render the provision valid shall be favored over any
interpretation that would render it invalid.
25. Severability. If any provision of this Deed, or the application thereof to any person
or circumstance, is found to be invalid, the remainder of the provisions of this 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 not be affected thereby.
26. Entire Agreement. This instrument sets forth the entire agreement of 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.
27. No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of
Grantor's title in any respect.
4835-3630-4064.2
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28. Successors. The covenants, terms, conditions, and restrictions of this 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 for the term of this
Agreement.
29. Termination of Rights and Obligations. A party's rights and obligations under this
Deed 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.
30. 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.
31. Third Party Beneficiaries. This Deed is entered into by and between Grantor and
Grantee and does not create enforcement rights or responsibilities in any other third parties,
including the general public.
32. Acceptance. As attested by the signature of an authorized party affixed hereto,
Grantee hereby accepts, without reservation, the rights and responsibilities conveyed by this Deed.
Grantee acknowledge receipt and acceptance of this Deed encumbering the Property for which no
goods or services were provided.
33. Change of Conditions. A change in the potential economic value of any use that is
prohibited by or inconsistent with this easement, or a change in any current or future uses of
neighboring properties, shall not constitute a change in conditions that makes it impossible or
unpractical for continued use of the Property for conservation purposes and shall not constitute
grounds for terminating the Deed.
34. No Land Use Approvals Imputed to Deed. The Grantor shall be solely responsible
for compliance with applicable laws in regard to the exercise of rights reserved herein, and, nothing
contained in this Deed is intended to represent a permit or land use approval by Pitkin County.
IN WITNESS WHEREOF, Grantor and Grantee have executed this Easement as of the day
and year first above written.
4835-3630-4064.2
[Signatures on Following Pages]
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4835-3630-4064.2
PITKIN COUNTY:
BOARD OF COUNTY COMMISSIONERS,
PITKIN COUNTY, COLORADO, a body politic
By:
Naive:
Title:
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4835-3630-4064.2
ACSD:
ASPEN CONSOLIDATED SANITATION
DISTRICT, a Colorado quasi -municipal
corporation and public entity
By:
Name:
Title:
14
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Exhibit A
Legal Description of the Property
A Tract of land for the purpose of a Conservation Easement, lying and situated in the Northeast Quarter
of Section 28, Township 9 South, Range 85 of the Sixth Principal Meridian, being a part of Government
Lot 1 of said Section, County of Pitkin, State of Colorado, said Tract more particularly described as
follows:
COMMENCING at the Northeast corner of said Section 28, also being the Northeast corner of said
Government Lot 1, monumented by a found 2-1/2 inch aluminum cap marked "D.B. & CO. PLS 27275
2002", from whence the North Quarter -corner of said Section 28, monumented by a found 3-1/4 inch cap
marked "CDOH PLS 17491" is assumed to bear South 89° 22' 16" West a ground distance of 2602.40
feet, and all bearings herein are relative thereto; thence South 89° 22' 16" West 440.00 feet on the North
line of said Section 28, also being the North line of said Government Lot 1, to the POINT OF BEGINNING
of said Tract; Thence departing said North line South 52° 36' 07" West 298.92 feet to a point; Thence
South 30° 29' 04" West 104.76 feet to a point; Thence South 06° 57' 02" West 37.65 feet to a point;
Thence South 28° 56' 29" East 43.05 feet to a point; Thence South 46° 12' 39" East 213.99 feet to a
point; Thence South 16° 00' 32" East 123.82 feet to a point; Thence South 33° 37' 18" East 63.70 feet to
a point on the South line of said Government Lot 1; Thence North 88° 25' 40" West 369.36 feet on said
South line to the centerline of Roaring Fork River as resolved by Colorado Department of Transportation
Right -of -Way plans for Project Number STR 0821-039 Unit 3, recorded in Survey Book 56 at Page 1 in
the Pitkin County Clerk and Recorder's office; Thence departing said South line and northerly on said
centerline the following four (4) courses and distances: 1) North 35° 15' 37" West 36.96 feet to a point; 2)
Thence North 39° 11' 20" West 268.42 feet to a point; 3) Thence North 09° 40' 45" East 125.45 feet to a
point; 4) Thence North 24° 44' 58" East 319.33 feet to a point on said North line of Section 28; Thence
departing said centerline North 89° 22' 16" East 455.86 feet on said North line to the POINT OF
BEGINNING, said Tract containing 239,581 square feet or 5.50002 acres.
4837-7040-9142.4
15
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RECEPTION#: 669865, 10/27/2020 at 12:26:19 PM, Pgs 41 of 41, Janice K. Vos Caudill, Pitkin County, CO
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