Loading...
HomeMy WebLinkAboutbocc.ord.019.2017 CONTRACT NO. 352-2017 (Attached) AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY,COLORADO,AMENDING THE RUBEY SUBDIVISION CONSERVATION EASEMENT AND AGREEMENT ORDINANCE NO. M 9 -2017 RECITALS: 1. Pursuant to 30-35-301 C.R.S.. the Board of County Commissioners("BOCC")of Home Rule Counties 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 28.1 of the Home Rule Charter("HRC"),the BOCC is authorized to take official action by Ordinance for certain matters where action is presented pursuant to the Colorado Revised Statues as amended 3 The Voters of Pitkin County and the Board of County Commissioners of Pitkin County (BOCC)established an Open Space and Trails Fund for the purposes of acquiring, preserving,managing,and maintaining open space and trails assets and resources,and established an Open Space and Trails Board of Trustees(OSTB)to guide the expenditure of those funds. 4. The Open Space and Trails Program(OST) is charged with protecting agriculture,open space,habitat, scenic view planes, water nghts and over access. 5. The Rubey Subdivision Conservation Easement and Agreement was granted to Pitkin County and recorded on November 15,2007, and recorded at reception number 544082 (the"Conservation Easement") 6 The owner of Lot 2,Rubey Subdivision,discovered an error regarding the location of a 20.00' Water Line Easement represented on the 1041 Hazard Review Site Plan and Amended Plat of Lot 2, Rubey Subdivision which is referenced and incorporated in the Conservation Easement. 7. On August 19,2010,the Pitkin County OSTB adopted a policy on Conservation Easement Amendments that provides a framework to analyze when and why an amendment to a conservation easement may be warranted. 8. In compliance with the aforementioned policy, the OSTB reviewed the information and recommended approval of the amendment to the Conservation Easement,to cure an error or ambiguity, at their June 6, 2017 board meeting. 11 111111111111111111111111111111111111111111111111111 11111Illlllllllllllllllllllllllll 1 RECEPTION#: 643670, R: $0.00, D: $0.00 DOC CODE: ORDINANCE Pg 1 of 18, 12/07/2017 at 02:57:00 PM Janice K.Vos Caudill, Pitkin County,CO 9. The BOCC finds that adoption of this ordinance is in the best interest of the citizens of Pitkin County NOW,THEREFORE,BE IT ORDAINED by the Board of County Commissioners of Pitkin County, Colorado that it hereby adopts an ordinance amending the Rubey Subdivision Conservation Easement and Agreement to add the phrase"Maintenance, repair and replacement of underground utilities existing as of the date of the conveyance is permissible,"and authorizes the Chair or the Chair's designee to sign the Ordinance and upon the satisfaction of the County Attorney as to form, execute any other associated documents necessary to complete this matter. Signature page follows 2 INTRODUCED AND FIRST READ ON THE 28th DAY OF JUNE,2017 AND SET FOR SECOND READING AND PUBLIC HEARING ON THE 12'"DAY OF JULY,2017. NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF T lE RE OLUTION PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE .? DAY OF A of ,2017. NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE RESOLUTION POSTED ON THE OFFICIAL ITKIN COUNTY WEBSITE(www.pitkincountv.corn)ON THE 9.ye& DAY OF LI 2017 ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON TILE 4- DAY OF (31/(t6.-- 2017. PUBLISHED BY TITLE AND SHORT SUMMARY,AFTER ADOPTION, IN THE ASPEN TIMES WEEKLY ON THE %dd'• DAY OF cull,- ,2017 POSTED BY TITLE AND SHORT SUMMARY ON THE OFFICIAL PITKIN COUNTY WEBSITE(iw'ww.pnkincounty corn)ON THE /'{ DAY OF 4)V itM- ATTEST: BOARD OF COUNTY COMMISSIONERS / )I By . / 1,y "✓ BY re l ,`jq'&A7` lea • - Ions George N i an,Chau\ Dep, County Clerk 1 / /CI \\,. Dater-' / (i / -- APPROVED AS TO FORM: MANAGER APPROVAL �i�� ,_ - John AEl nt , : • + ey fon Peacock,County Manager Gary Tennenbaum,OST Director 3 ��L,h { APPROVED B ORDINANCE # ON- 9.0i/ AMENDED AND RESTATED CONSERVATION EASEMENT.4ND AGREEMENT, LOT 2 RUBEY SUBDIVISION THIS AMENDED AND RESTATED CONSERVATION EASEMENT AGREEMENT LOT 2, RUBEY SUBDIVISION ("Easement Agreement"), made as of this MA day of /7126 tier, 2017, by and between RED MOUNTAIN ESTATES, LLC, a Colorado limited liability company ("Grantor") whose address isl 5280 Addison Road, Suite 301, Addison, TX 75001, and, in favor of THE PITKIN COUNTY BOARD OF COUNTY COMMISSIONERS, a political subdivision of the State of Colorado, having an address of 530 East Main Street,Aspen,Colorado 81611 ("Grantee"). RECITALS: WHEREAS, Grantor is the owner in fee simple of certain real property in Pitkin County, Colorado described as Lot 2, Rubey Subdivision ("Lot 2"), as shown on the 1041 Hazard Map and Amended plat recorded November 15, 2007, in Plat Book 85 at pages 60-61, at Reception No.544077(the"Plat"). Grantors desire to submit a portion of the property shown on the Plat to this Conservation Easement. The portion of the property owned by Grantors which is submitted to this Conservation Easement is marked with cross-hatching and labeled as being subject to this Conservation Easement(the"Conservation Property");and WHEREAS, on November 15, 2007, the owners of all of the lots in the Rubey Subdivision, Pitkin County, Colorado conveyed a conservation easement over various portions of the lots in Rubey Subdivision to Grantee (the "2007 Conservation Easement"). The Conservation Easement and Agreement was recorded on November 15, 2007 at Reception No. 544082 of the records of the Clerk and Recorder of Pitkin County,Colorado. WHEREAS, Grantor now intends with the grant of this Deed to amend and restate the 2007 Conservation Easement as it applies to Lot 2 to cure an error or ambiguity in Section 4.8 of the 2007 Conservation Easement. WHEREAS, the Conservation Property has significant ecological, scenic, aesthetic and open space values as recognized in C.R.S. §38-30.5-101, et seq. (as the same may be amended from time to time, the "Conservation Easement Statute"); and a portion of the Conservation Property is adjacent to Hunter Creek and the Hunter Creek Trail which is a trail that is used by many residents of and visitors to the Roaring Fork Valley; and a portion of the Hunter Creek Trail (un-built at the time this Easement is granted)runs through the Conservation Property;and WHEREAS, the Conservation Property is a valuable element of the natural habitat of the area because of its ecological, scenic and aesthetic values including flora, fauna, and soils; and WHEREAS, the Conservation Property is desired as open space as part of Grantee's policies;and WHEREAS, the maintenance of such habitat helps support wildlife and plant populations and communities and the scenic enjoyment of the Roaring Fork Valley and Active/462891681 WHEREAS, all of these natural, ecological, scenic, wildlife, and aesthetic values (collectively, the"Conservation Values')are of great importance to Grantor and Grantee and to the residents of and visitors to the Roaring Fork Valley and the Conservation Values are worthy of preservation; and WHEREAS, the State of Colorado has recognized the importance of private efforts toward the preservation of natural areas in the state by the enactment of the Conservation Easement Statute;and WHEREAS, Grantee is a governmental entity as described in C R.S. Section 38-30.5- 104(2); and WHEREAS, Grantor, as owner of the Conservation Property, owns the affirmative rights to identify, preserve and protect in perpetuity its open space character and its significant relatively natural features and values and further intends, as owner of the Property, to convey to Grantee the right to preserve and protect the Conservation Values of the Conservation Property in perpetuity,and WHEREAS, by acceptance of this Conservation Easement, Grantee acknowledges its commitment to honor the intentions of Grantor as expressed herein to preserve and protect in perpetuity the Conservation Values of the Conservation Property for the benefit of this and future generations. NOW, THEREFORE, in consideration of the above and the mutual covenants, terms, conditions, and restrictions contained herein, and pursuant to the laws of Colorado and in particular C.R.S. §38-30.5-101 et seq., Grantor hereby voluntarily grants and conveys a non- exclusive conservation easement (the "Easement"), in perpetuity, consisting of the rights hereinafter enumerated on, over and across the Conservation Property, TO HAVE AND TO HOLD, unto Grantee, subject to all existing easements and encumbrances of record or apparent on the Conservation Property. 1. Purpose. It is the purpose of this Easement Agreement to assure that the Conservation Property will be retained in its natural, scenic, open space and park-like condition and to prevent any use of the Conservation Property that will impair or interfere with the Conservation Values of the Conservation Property. Grantor intends that this Easement will confine the use of the Conservation Property to such activities, including, without limitation, those involving open space and general conservation purposes and any other use permitted herein. Pursuant to the terms of the Conservation Easement Statute, the Conservation Property may not be converted or directed to any uses other than those provided herein 1.1 Baseline Documentation. The parties acknowledge that a written report dated October 11, 2012 has been prepared, reviewed and approved by Grantor and Grantee(the "Baseline Documentation Report"). A copy of the Baseline Documentation Report will be kept on file with both parties and by this reference made a part hereof. The parties acknowledge that the Baseline Documentation Report is intended to establish the condition of the Property subject to the Easement as of the date written above, and that both parties will acknowledge in a signed 2 Acnvd46I89168I statement that the Baseline Documentation Report accurately represents the condition of the Property at the time of the conveyance. The panics further agree that, in the event a controversy arises with respect to the condition of the Property as of the conveyance date of the Easement, or compliance with or violation of any term or provision of this Easement, the parties may use the Baseline Documentation Report and any other relevant or material documents, surveys, reports, and other information to assist in resolving a controversy. 2. Rights of Grantee. To accomplish the purpose of the Easement, the following rights are conveyed to Grantee by this Easement Agreement. 2.1 To preserve and protect the Conservation Value of the Conservation Property;and 2.2 To enter upon the Conservation Property in order to maintain the Easement and to construct trails and pathways in the trail Easement shown on the Plat(as limited herein),to inspect the easement and to monitor compliance with and otherwise enforce the terms of this &cement Agreement as provided herein;and 2.3 To prevent any activity on or use of the Conservation Property that is inconsistent with the purpose of this Easement Agreement and to require the restoration of such areas or features of the Conservation Property that may be damaged by any inconsistent activity or use,pursuant to the remedies set forth in Section 6 hereof. 3. Consistent Uses of the Conservation Property. The following uses and practices,though not an exhaustive recital,are consistent with the Easement,and other consistent uses shall not be precluded by the Easement. 3.1 Water Resources. Grantor or Grantee may develop and maintain those water resources on the Conservation Property which are necessary or desirable for wildlife, and flood control including, but not limited to the right to locate, construct, install and maintain headgates,ditches, wells and ponds and to improve the quality and quantity of water available. 3.2 Trees and Plants. Grantor and Grantee may remove trees and plants that constitute a hazard to persons or property. Grantor and Grantee may also trim,cut or prune trees and brush on the Conservation Property, collect dead,dying,and down trees on the Conservation Property in order to abate disease, Infestation and fire danger and to maintain healthy fauna, and Grantee or Grantor may also plant trees and plants that are native species and suitable to the open space atmosphere which the Easement is intended to protect and foster. No commercial logging or harvesting of timber shall be allowed on the Conservation Property. 33 Construction of Paths and Walkways. Grantee may construct, on the Conservation Property, only those paths, walkways and trails as are depicted on the Plat. Any paths, walkways or trails constructed on the Conservation Property shall not be paved with asphalt or concrete or other hard surfaces. The parties acknowledge that a portion of the Hunter Creek Trail passes through the Conservation Property. To the maximum extent practical, any paths, walkways or trails on the Conservation Property shall not be constructed, repaired or 3 Acine462R9169 I maintained with the aid of motorized vehicles of any sort. Itis contemplated that Grantee will construct an extension of the Hunter Creek Trail across a portion of the Conservation Property. In so doing, Grantee may need to erect a bridge across Hunter Creek at a point generally lying at the southeast corner of Rubey Subdivision, Lot 5 and as depicted on the Plat thereof. To the maximum extent practical,all access,staging,construction or other activity related to erection of the bridge shall occur on the south bank of Hunter Creek in the vicinity of the Hunter Creek Trail as it is currently situated and not on the Conservation Property. If extension of the Hunter Creek Trail along the specific course depicted on the Plat of the Conservation Property proves problematic in light of local, State or Federal laws and regulations (including wetlands regulations),Grantee may relocate the extension only with Grantor's permission,which shall not be unreasonably withheld, pursuant to the rights reserved by Grantor in Section 5 hereof, provided that Grantee's proposed route will not injure or detract from the Conservation Values of the Conservation Property and will not injure or detract from the remainder of the Rubey Subdivision as determined by Grantors. 3.4 Fences. The existing 6' chain link fence along the west boundary of the Conservation Property, along the boundary with Red Mountain Road, is a wildlife bather and shall be removed. Other existing fences may be repaired and replaced, and new fences may be built anywhere on the Conservation Property for purpose of reasonable and customary management of wildlife and to prevent persons or animals from trespassing, provided such fences do not have a material adverse impact on the Conservation Values of the Easement. Fences shall be constructed so as to permit migration of wildlife across the Conservation Property. 3.5 Rodent Control. Grantor may control rodents and other problem animals by the appropriate use of legal control techniques. Wherever possible, all measures used for such control shall be limited in their application to specific animals which Grantee shall have determined to be a nuisance and in a manner which is not inconsistent with the Conservation Values. Grantor shall use such rodent control techniques so as to not have an adverse impact on irrigation and agricultural activities down gradient of the Conservation Property. 3.6 Weeds. Grantor shall have the responsibility to control noxious weeds in a manner consistent with state laws, subject to the following: (a) all control techniques shalt be consistent with the labeled instructions of the application materials which constitute the reasonable minimum necessary to control and/or eradicate the weeds, and which reasonably minimize impacts on the Conservation Values of the Easement; (b) aerial application of any weed control shall be prohibited; (c) biological (insect)control of weeds which do not materially or adversely impact any of the Conservation Values of the Easement shall be deemed consistent with the purposes of this Easement Agreement; and (d) all weed control techniques shall be managed so as to not have an adverse impact on irrigation and agricultural activities down- gradient of the Conservation Property. 4. Prohibited Uses. Any activity on or use of the Conservation Property inconsistent with the purpose of this Fasement Agreement is prohibited. Without limiting the generality of the foregoing, the following activities and uses are expressly prohibited: 4 A UvS46289168 I 4.1 Residential, Retail, Commercial or Industrial Activity. No residential, commercial, industrial or retail uses shall be allowed on the Conservation Propert3. 4.2 Wildlife Disturbance or Harassment. Harassment of wildlife on the Conservation Property by people or domestic animals is prohibited 4.3 Non-Native Species. Neither Grantor nor Grantee shall introduce any non-native plant or animal species upon the Conservation Property. 4.4 Access. Access by any type of motorized vehicle is strictly prohibited on the Conservation Property 4.5 Construction of Buildings and Other Structures. The construction of any building or other structure on the Conservation Property shall be stnctly prohibited except on expressly provided in Section 3 above. 4.6 Roads. Streets and roadways of any kind or nature on the Conservation Property shall be prohibited, except in accordance with existing easements. 4.7 Dumping. Trash, debris, ashes, sawdust, and other nan-compostable refuse may not be collected,dumped, stored or disposed of on the Conservation Property. 4.8 Utilities. No above-ground utility transmission lines of any kind or purpose shall be permitted on the Conservation Property under any circumstance except in accordance with existing easements. Maintenance, repair and replacement of underground utilities existing as of November 15,2007 is permissible. 4.9 Mineral Activities Exploration or extraction of oil, gas, and other minerals, rock, gravel, or sand found in, on, or under the Conservation Property by open-pit or surface mining methods shall be prohibited 4.10 Timber Harvesting. Timber harvesting shall be prohibited. 4.11 Raptor Nests. Neither Grantor nor Grantee will cut or disturb any trees or other vegetation on the Conservation Property within 300 feet of any active raptor nest during its nesting season, or remove any crown trees or overstory vegetation on the Conservation Property within 300 feet of any active raptor nest at any time However, diseased trees may be cut down and removed during the non-nesting season to abate infestations. 4.12 Billboards Billboards and commercial signs of any sort shall be prohibited on the Conservation Property. 4.13 Hazardous Materials. The storage, dumping or other disposal of toxic and/or hazardous materials or of non-compostable refuse on the Conservation Property is prohibited. 4.14 Water Pollution. The matenal degradation or pollution of any surface or sub-surface water on the Conservation Property shall be prohibited. 5 462e91681 4.15 Hunting. No hunting of any sort shall be allowed on the Conservation Property. 4.16 No Public Access. Except in accordance with existing pedestrian trail easements shown on the Plat, no public access shall be granted on or to the Conservation Property without Grantor's express written permission, which may be denied for any or no reason. 5. Reserved Rights. Grantor reserves to itself,and to its successors and assigns,all nghts accruing from their ownership of the Conservation Property, including the right to engage in, or permit or invite others to engage in, all uses of the Conservation Property that are not prohibited herein and are not inconsistent with the purpose of this Easement Agreement. These rights include, but are not limited to, the right to exclude any member of the public from trespassing on the Conservation Property,the right to sell or otherwise transfer the Conservation Property to anyone Grantor chooses. 6. Remedies. 6.1 Injunctive Relief. Either Grantor or Grantee may bring an action at law or in equity, in a court of competent jurisdiction, to enforce the terms of this Easement Agreement, or to temporarily, preliminarily or permanently enjoin (ex parte as necessary) the violation or threatened violation of this Easement Agreement, or to require the restoration of the Conservation Property to the condition that existed prior to any injury to the Conservation Property. 6.2 Damages. Either Grantor or Grantee shall be entitled to recover damages for violation of the terms of this Easement Agreement or injury to any conservation values protected by this Easement Agreement, including without limitation, damages for the loss of scenic,aesthetic,or environmental values. 6.3 Emergency Enforcement. If Grantor or Grantee, in their sole discretion, shall determine that circumstances require immediate action to prevent or mitigate significant damage to the Conservation Values of the Easement, either Grantor or Grantee may pursue their remedies under this Section 6 without prior notice to the other party hereto. 6.4 Scope of Relief. Grantor's rights and Grantee's rights under this Section 6 shall apply equally in the event of either actual or threatened violations of the terms of this Easement Agreement. Grantor and Grantee agree that their respective remedies at law for any violation of the terms of this Easement Agreement are inadequate and that the prevailing party shall be entitled to the injunctive relief described in Section 6.1,both prohibitive and mandatory, in addition to such other relief to which the prevailing party may be entitled, including specific performance of the terms of this Easement Agreement, without the necessity of providing evidence of either actual damages or the inadequacy of otherwise available legal remedies. Grantee's and Grantor's remedies described in this Section 6 shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity. 6.5 Costs of Enforcement. All reasonable costs incurred by Grantor or Grantee in enforcing the terms of this Easement Agreement, including, without limitation costs 6 Acuve/46289I68I and expenses of suit and reasonable attorneys' fees, and any cost of restoration necessitated by any party's violation of the terms of this Easement Agreement, shall be borne by the non- prevailing party in litigation 6.6 Forbearance; No Waiver. Forbearance by Grantor or Grantee to exercise their rights under this Easement Agreement in the event of any breach of any term of this Easement Agreement shall not be deemed or construed to be a waiver of such rights, nor shall any subsequent breach of the same or any other term of this Easement Agreement be deemed to be exempt from the remedies provided herein. No delay or omission in the exercise of any right or remedy upon any breach shall impair such right or remedy or be construed as a waiver. 6.7 Waiver of Certain Defenses. Grantor and Grantee hereby waive any defense of laches,estoppel or prescription. 6.8 Acts Beyond Grantor's or Grantee's Control. Nothing contained in this Easement Agreement shall be construed to entitle either party hereto to bring any action against the other party hereto for any injury to or change in the Conservation Property resulting from causes reasonably beyond one party's control, including, without limitation, fire, flood, storm, and earth movement, or from any prudent action taken by either party hereto to prevent abate,or mitigate significant injury to the Conservation Property resulting from such causes. 7. No Public Access. No right of access by the general public to any portion of the Conservation Property is conveyed by this Easement Agreement. Grantor, Grantee and their agents or contractors shall have a right of access to the Conservation Property for purposes of management and use of the Conservation Property consistent with the terms hereof. The parties acknowledge the existing right of public access along the hunter Creek Trail as shown on the Plat as the same may be relocated pursuant to paragraph 3.3 above. 8. Costs,Liabilities and Taxes; Indemnities. 8.1 Costs of Maintenance. Grantor hereby assumes all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the Conservation Property, including the maintenance of adequate liability insurance coverage; except that Grantee shall assume all costs and responsibility for operation, upkeep, and maintenance of the public trail which passes through the Conservation Property. Grantor and Grantee shall keep the Conservation Property free of any hens arising out of any work performed for, material furnished to,or obligation incurred by them,respectively. 8.2 Taxes. Grantor shall pay before delinquency all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Conservation Property by competent authority (collectively "taxes"), including any taxes imposed upon, or incurred as a result of, this Easement Agreement, and shall famish Grantee with satisfactory evidence of payment upon request. 83 Indemnities. 7 Actnd4628916E1 83.1 Grantor shall be responsible for: (1) the negligent actions of its officials, employees, and agents in the performance or failure to perform their obligations pursuant to this Fasement; (2) injury to or the death of any person, or physical damage to any property, proximately caused by any intentional or negligent act or omission of Grantor, its officials, employees, or agents related to or concerning the Property; and (3) the presence or release of hazardous or toxic substances on, under or about the Property, and all claims, demands, liability,damages, or costs caused thereby,unless such substance was introduced onto the Property by the public using the Hunter Creek Trail or trespassing or by Grantee or any of its officials, employees or agents. For the purpose of this paragraph, hazardous or toxic substances shall mean any hazardous or toxic substance which is regulated under any federal, state or local law. In assuming responsibility under this paragraph, the Grantor in no way assumes responsibility for the intentional or negligent acts or omissions of Grantee, its officers, employees or agents. Nothing in this casement shall be construed as giving rise to any right or ability of the Grantee to exercise physical or managerial control of the day-today operations of the Property,or of any of Grantor's activities on the Property,or otherwise become an'operator" within the meaning of The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 as amended or any other federal, state, or local law or regulation making operators of property responsible for the remediation of environmental contamination. 8.3.2 Grantee shall be responsible for: (1) the negligent actions of its officials, employees, and agents in the performance or failure to perform their obligations pursuant to this Easement; and (2) injury to or the death of any person, or physical damage to any property,proximately caused by any intentional or negligent act or omission of Grantee, its officials, employees, or agents related to or concerning the Conservation Property or the use of the public trail which passes through the Conservation Property. In assuming responsibility under this paragraph, the Grantee in no way assumes responsibility for the intentional or negligent acts or omissions of Grantor,its officers,employees or agents. 9. Representation and Warranties. Grantor represents and warrants, to the best of its current actual knowledge without a duty of investigation,as follows: 9.1 No substance defined, listed, or otherwise classified pursuant to any federal, state,or local law,regulation, or requirement as hazardous,toxic,polluting,or otherwise contaminating to the air, water,or soil,or in any way harmful or threatening to human health or the environment exists or has been released, generated, treated, stored, used, disposed of, deposited,abandoned,or transported in,on,from,or across the Conservation Property. 9.2 There are no underground storage tanks located on the Conservation Property, whether presently in service or closed, abandoned, or decommissioned, and no underground storage tanks have been removed from the Conservation Property in a manner not in compliance with applicable federal,state,and local laws,regulation,and requirements. 93 Grantor and the Conservation Property are in compliance with all federal, state, and local laws, regulations,and requirements applicable to the Conservation Property and its use. 8 A[fiue/46289168I 9.4 No civil or cnminal proceedings or investigations have been instigated at any time or are now pending, and no notices, claims, demands, or orders have been received, arising out of any violation or alleged violation of, or failure to comply with, any federal, state or local law, regulation, or requirement applicable to the Conservation Property or its uses, nor do there exist any facts or circumstances that Grantor might reasonably expect to form the basis for any such proceedings,investigations,notices,claim,demands,or orders. 10. Extinguishment and Condemnation. 10.1 If circumstances arise in the future that render the purpose of this Easement Agreement impossible to accomplish, this Easement Agreement can only be terminated or extinguished,whether in whole or in part, by(a)judicial proceedings in a court of competent jurisdiction or (b) by the written agreement of the owners of both the Easement and fee simple title to the Conservation Property. 10.2 In granting the Easement, Grantor has considered the possibility that uses prohibited by the terms of this Easement Agreement may become more economically valuable than permitted uses, and that neighboring properties may in the future be put entirely to such prohibited uses. It is the intent of both Grantor and Grantee that any such changes shall not be deemed to be circumstances justifying the termination or extinguishment of this Easement Agreement. In addition, the inability of Grantor, or its successors, or assigns, to conduct or implement any or all of the uses permitted under the terms of this Easement Agreement, or the unprofitability of doing so, shall not impair the validity of this Easement Agreement or he considered grounds for its termination or extinguishment 103 In the event the Easement is extinguished by condemnation or other involuntary conversion, the Grantee's share of the condemnation proceeds shall be determined according to the following formula: Grantee's Share of Condemnation Proceeds shall equal the Fair Market Value of the Easement divided by the Fair Market Value of the Conservation Property. The fee owner of the Conservation Property shall receive the remaining condemnation proceeds. 11. Assignment. The Easement is transferable by Grantee, but Grantee may only assign its rights and obligations under this Easement Agreement to an organization that is (a) either a governmental entity or a qualified organization at the time of transfer under Section 170(h) of the Internal Revenue Code of 1986, as amended (or any successor provision then applicable) (the "Code"), and the applicable regulations promulgated thereunder and (b) authorized to acquire and hold conservation easement under Colorado law. Upon such transfer, Grantee shall have no further obligation or liability under this Easement Agreement Pursuant to Treasury Regulation Section 1.170A-14(c)(2), any future transfer of the Easement must be made to an Eligible Donee. An Eligible Donee is defined as an organization that will protect the conservation purposes of the donation, and has the resources to enforce the restrictions in the Easement. 12. Amendment. If circumstances arise under which an amendment to or modification of this Easement Agreement would be appropriate, Grantor and Grantee are free to 9 Active/462E9168 I jointly amend this Easement Agreement; provided that no amendment shall allow further division or subdivision of the Conservation Property, nor allow the construction of buildings or structures, nor permit uses of the Conservation Property, except as otherwise permitted herein. Any such amendment shall be recorded in the real estate records of Pitkin County, Colorado. 13. Subsequent Transfers. Grantor agrees to incorporate the teens of this Easement Agreement by reference into any deed or other legal instrument by which it divests itself of any interest in all or a portion of the Conservation Property. The failure of Grantor to incorporate this Easement Agreement into any deed shall not impair the validity of this Easement Agreement or limit its enforceability in any way. 14. Notices Any notice required or permitted under this Agreement shall be in writing and shall be hand-delivered or sent by registered or certified regular mail, postage pre- paid and via e-mail (electronic delivery) to the mailing and e-mail addresses set forth below. Each party by notice sent under this paragraph may change the address to which future notices should be sent Electronic delivery of notices shall be considered delivered upon receipt of confirmation of delivery on the part of the sender. GRANTOR: RED MOUNTAIN ESTATES,LLC Attn: Daryl Snadon 15280 Addison Road, Suite 301 Addison, TX 75001 Copy to. B.Joseph Krabacher, Esq. SHERMAN&HOWARD,LLC 730 E.Durant Avenue, Suite 200 Aspen, Colorado 81611 jloabachera,shennanhoward.com GRANTEE: Pitkm County Board of County Commissioners 123 Emma Road Suite 106 Basalt,CO 81621 Copy to: Pitkin County Attorney 123 EmmaRoad Suite 204 Basalt, CO 81621 attornevanitkincounty cora 10 Acuve1462B9168 I 15. General Provisions. 15.1 Controlling Law. The interpretation and performance of this Easement Agreement shall be governed by the law of the State of Colorado. 15.2 Liberal Construction. Any general rule of construction to the contrary notwithstanding, thus Easement Agreement shall be liberally construed in favor of the grant to effect the purpose of the Easement, the policy and purpose of the Conservation Easement Statute and the policy and purpose of Section 170 of the Code and the regulations promulgated thereunder. If any provision in this instrument is found to be ambiguous an interpretation consistent with the purpose of this Easement Agreement that would render the provision valid shall be favored over any interpretation that would render it invalid. 15.3 Severability. If any provision of this Easement Agreement, or the application thereof to any person or circumstances, is found to be invalid, the remainder of the provisions of this Easement Agreement, or the application of such provision to person or circumstances other than those as to which it is found to be invalid, as the case may be, shall not be affected thereby. 15.4 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 agreement relating to the Easement,all of which are merged herein. 155 No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Grantor's title in any respect 15.6 Successors and Assigns; Covenant Running With the Land. The covenants, terms, conditions and restrictions of this Easement Agreement shall be binding upon, and inure to the benefit of,the parties hereto and their respective personal representatives, heirs, successors, and assigns and the Easement shall be deemed a covenant conning with the land described herein as the Conservation Property. The terms "Grantor" and "Grantee," wherever used herein,and any pronoun used in place thereof, shall include,respectively, the above-named Grantors and their successors and assigns, and the above- named Grantee and its successors and assigns. 15.7 Termination of Rights and Obligations. A party's rights and obligations under this Easement Agreement shall terminate upon transfer of the party's interest in the Easement or in the Conservation Property (as the context may require), except that liability for acts or omissions occurring pnor to transfer shall survive transfer. 15.8 Counterparts. The parties may execute this instrument in two or more counterparts, which shall, in the aggregate, be signed by both parties; each counterpart shall be deemed an original instrument as against any party who has signed it. 15.9 Interpretation. If any reserved right of Grantor under this Easement Agreement is found to be not in compliance with Section 170(h)of the Code, or any regulations promulgated thereunder, then such provision shall be interpreted and applied in such a manner as 11 Acnve/4628916PI to be in compliance with Section I70(h) of the Code, and any regulations promulgated thereunder. 15.10 Further Assurances. In addition to the acts and deeds recited herein and contemplated to be performed, executed and/or delivered by Grantor and Grantee, Grantor and Grantee agree to perform, execute andior deliver from time to time any and all such further acts, deeds and assurances as may be reasonably required to effect the Conservation Values. Grantee shall, upon Grantor's request,execute Internal Revenue Service form 8283 confirming Grantee's receipt of the Easement. 16. Warranty of Title. Grantor warrants that it has good and sufficient title to the Conservation Property,that it has good right,full power and lawful authority to grant and convey the Easement, that there are no mortgages or liens on the Conservation Property, and Grantor hereby promises to warrant and forever defend the title to the Easement in the quiet and peaceable possession of Grantee, its successors and assigns, against all and every person or persons lawfully claiming the whole or any part thereof. 17. Perpetual Term. The term of this Easement is perpetual. IN WITNESS WHEREOF Grantor and Grantee have caused to be executed this Easement Agreement as of the day first written above. GRANTOR'SAND GRANTEE'S SIGNATURE PAGES FOLLOW BELOW 12 AcUve/46289168 I GRANTOR: •1 I •UNTAIN TATES,LLC roe / B . P S1 Daryl N. St ager State of Colorado ) )ss County of Pitkin ) �1 Acknowledged before me this 1N day of AQccu,S E- 2017 by Daryl N. Snadon as Manager of Red Mountain Estates,LLC. WITNESS my hand and official seal. My commission expires: 414411a4 sa CHERYL HERE NoTARY LIC Notary Public NOT ID 1996400,171224123COLORADO IM cosMI5 Ol EXPIRES GRANTEE'S SIGNATURE PAGE FOLLOWS BELOW 13 Active/46239168 I GRANTEE: PITKIN COUNTY BOARD OF COUNTY COMMISSIONERS By.. . / . . -- George Ni an Chairperson ATTEST: J APPROVED AS TO FORM: By: t.arf�. By: ' � Ca num indict John 3y,County Attorn 5 MV traf i/ STATE OF COLORADO ) ss. COUNTY OF PIFKIN Subscribed and sworn to before mc this ;? day of -,i i 2017, by George Newman as Chairperson of the Pitkin County Board of County Co iii .ssiooers. Witness my hand and official seal, + My commission expires: 5-G t hu.(GG. t/✓ JEANbt t£JONES Are —_ -- NOTARY PUBLIC Notary/ attic STATE OF COLORADO Novue/t rsso+oaxass VICOlifleeti CORES sa'r2J€i8.JYn 14 AcIsvc/4,289t641 LIENHOLDER CONSENT The undersigned, being the beneficiary under that certain Deed of Trust, Assignment of Leases and Rents, and Security Agreement, granted by Red Mountain Estates, LLC, a Colorado limited liability company, and recorded February 16, 2016 as Reception No. 627062, hereby consents to the foregoing Amended and Restated Conservation Easement and Agreement, Lot 2 Rubey Subdivision and hereby subordinates any interest that the beneficiary may have in and to Lot 2 Rubey Subdivision to the Amended and Restated Conservation Easement and Agreement, Lot 2 Rubey Subdivision. �1 Executed this f4-day of /EUyv:W.2017 The Northernry`� Trust Company By: '( Y An/ Matt Adams,Vice President (Statement of Authority recorded at Reception Na 640224) STATE OF TEXAS ) ss COUNTY OF DALLAS ) The foregoing Lienholder Consent was acknowledged before me this f/day of 2017,by Matt Adams as Vice President of The Northern Trust Company. Witness my hand and official seal.My commission expires: NlZr U Ot( — --- -- - Notary P �c "�\ wail) iry ouiixa°mm IAF M*COmmsrwn Frm,a 4a Jan21,2021 15 Acuvd462H9163.1 CONTRACT NO. 352-2017 AF01'4MA0 AENC E CE # 40/ - 90/1 C,L ,•,",.ti AMENDED AND RESTATED CONSERVATION EASEMENT AND AGREEMENT, LOT 2 RUBEY SUBDIVISION THIS AMENDED AND RESTATED CONSERVATION EASEMENT AGREEMENT LOT 2, RUBEY SUBDIVISION ("Easement Agreement"), made as of this /99-A day of P176 Ut n, 2017, by and between RED MOUNTAIN ESTATES, LLC, a Colorado limited liability company ("Grantor') whose address is15280 Addison Road, Suite 301, Addison. TX 75001, and, in favor of THE PITKIN COUNTY BOARD OF COUNTY COMMISSIONERS, a political subdivision of the State of Colorado. having an address of 530 East Main Street,Aspen,Colorado 81611 ("Grantee"). RECITALS: WHEREAS, Grantor is the owner in fee simple of certain real property in Pitkin County, Colorado described as Lot 2, Rubey Subdivision ("Lot 2"), as shown on the 1041 Hazard Map and Amended plat recorded November 15, 2007, in Plat Book 85 at pages 60-61, at Reception No. 544077(the"Plat"). Grantors desire to submit a portion of the property shown on the Plat to this Conservation Easement. The portion of the property owned by Grantors which is submitted to this Conservation Easement is marked with cross-hatching and labeled as being subject to this Conservation Easement (the"Conservation Property"): and WHEREAS, on November 15, 2007, the owners of all of the lots in the Rubey Subdivision, Pitkin County, Colorado conveyed a conservation easement over various portions of the lots in Rubey Subdivision to Grantee (the "2007 Conservation Easement"). The Conservation Easement and Agreement was recorded on November 15, 2007 at Reception No. 544082 of the records of the Clerk and Recorder of Pitkin County,Colorado. WHEREAS, Grantor now intends with the grant of this Deed to amend and restate the 2007 Conservation Easement as it applies to Lot 2 to cure an error or ambiguity in Section 4.8 of the 2007 Conservation Easement WHEREAS, the Conservation Property has significant ecological, scenic, aesthetic and open space values as recognized in C.R.S. §38-30.5-101, et seq. (as the same may be amended from time to time. the "Conservation Easement Statute"); and a portion of the Conservation Property is adjacent to Hunter Creek and the Hunter Creek Trail which is a trail that is used by many residents of and visitors to the Roaring Fork Valley; and a portion of the Hunter Creek Trail (un-built at the time this Easement is granted)runs through the Conservation Property. and WHEREAS,the Conservation Property is a valuable element of the natural habitat of the area because of its ecological, scenic and aesthetic values including flora, fauna, and soils:and WHEREAS, the Conservation Property is desired as open space as part of Grantee's policies;and WHEREAS, the maintenance of such habitat helps support wildlife and plant populations and communities and the scenic enjoyment of the Roaring Fork Valley;and 1111111IIIII11111IIIIIIIIIIIIIIIIIIIIIIIl1111111111111111IIIIIIIIIIIIIIIIII u,,,",assyiae i RECEPTION#: 643671, R:$0.00, D• $0.00 DOC CODE: EASEMENT Pg 1 of 18, 12/07/2017 at 02:57:01 PM Janice K.Vos Caudill, Pitkin County,CO WHEREAS, all of these natural, ecological, scenic, wildlife, and aesthetic values (collectively, the"Conservation Values") are of great importance to Grantor and Grantee and to the residents of and visitors to the Roaring Fork Valley and the Conservation Values are worthy of preservation; and WHEREAS, the State of Colorado has recognized the importance of private efforts toward the preservation of natural areas in the state by the enactment of the Conservation Easement Statute; and WHEREAS, Grantee is a governmental entity as descnbed in C.R.S. Section 38-30.5- 104(2); and WHEREAS, Grantor, as owner of the Conservation Property, owns the affirmative rights to identify, preserve and protect in perpetuity its open space character and its significant relatively natural features and values and further intends, as owner of the Property, to convey to Grantee the right to preserve and protect the Conservation Values of the Conservation Property in perpetuity, and WHEREAS, by acceptance of this Conservation Easement, Grantee acknowledges its commitment to honor the intentions of Grantor as expressed herein to preserve and protect in perpetuity the Conservation Values of the Conservation Property for the benefit of this and future generations. NOW, THEREFORE, in consideration of the above and the mutual covenants, terms, conditions, and restrictions contained herein, and pursuant to the laws of Colorado and in particular C.R.S. §38-30.5-101 et seq., Grantor hereby voluntarily grants and conveys a non- exclusive conservation easement (the "Easement'), in perpetuity, consisting of the nghts hereinafter enumerated on, over and across the Conservation Property, TO HAVE AND TO HOLD, unto Grantee, subject to all existing easements and encumbrances of record or apparent on the Conservation Property. 1. Purpose. It is the purpose of this Easement Agreement to assure that the Conservation Property will be retained in its natural, scenic, open space and park-like condition and to prevent any use of the Conservation Property that will impair or interfere with the Conservation Values of the Conservation Property. Grantor intends that this Easement will confine the use of the Conservation Property to such activities, including, without limitation, those involving open space and general conservation purposes and any other use permitted herein. Pursuant to the terms of the Conservation Easement Statute, the Conservation Property may not he converted or directed to any uses other than those provided herein. 1.1 Baseline Documentation. The parties acknowledge that a written report dated October 11, 2012 has been prepared, reviewed and approved by Grantor and Grantee (the "Baseline Documentation Report"). A copy of the Baseline Documentation Report will be kept on file with both parties and by this reference made a part hereof. The parties acknowledge that the Baseline Documentation Report is intended to establish the condition of the Property subject to the Easement as of the date written above, and that both parties will acknowledge in a signed Artie 4o289168 I statement that the Baseline Documentation Report accurately represents the condition of the Property at the time of the conveyance. The parties further agree that, in the event a controversy arises with respect to the condition of the Property as of the conveyance date of the Easement, or compliance with or violation of any term or provision of this Easement, the parties may use the Baseline Documentation Report and any other relevant or material documents, surveys, reports, and other information to assist in resolving a controversy. 2. Rights of Grantee. To accomplish the purpose of the Easement the following rights are conveyed to Grantee by this Easement Agreement: 2.1 To preserve and protect the Conservation Value of the Conservation Property; and 2.2 To enter upon the Conservation Property in order to maintain the Easement and to construct trails and pathways in the trail Easement shown on the Plat(as limited herein), to inspect the easement and to monitor compliance with and otherwise enforce the terms of this Easement Agreement as provided herein; and 23 To prevent any activity on or use of the Conservation Property that is inconsistent with the purpose of this Easement Agreement and to require the restoration of such areas or features of the Conservation Property that may be damaged by any inconsistent activity or use,pursuant to the remedies set forth in Section 6 hereof. 3. Consistent Uses of the Conservation Property. The following uses and practices,though not an exhaustive recital,are consistent with the Easement, and other consistent uses shall not be precluded by the Easement. 3.1 Water Resources. Grantor or Grantee may develop and maintain those water resources on the Conservation Property which are necessary or desirable for wildlife, and flood control including, but not limited to the right to locate, construct, install and maintain headgates,ditches,wells and ponds and to improve the quality and quantity of water available. 3.2 Trees and Plants. Grantor and Grantee may remove trees and plants that constitute a hazard to persons or property. Grantor and Grantee may also trim, cut or prune trees and brush on the Conservation Property, collect dead, dying,and down trees on the Conservation Property in order to abate disease, infestation and fire danger and to maintain healthy fauna, and Grantee or Grantor may also plant trees and plants that are native species and suitable to the open space atmosphere which the Easement is intended to protect and foster. No commercial logging or harvesting of timber shall be allowed on the Conservation Property. 3.3 Construction of Paths and Walkways Grantee may construct, on the Conservation Property, only those paths, walkways and trails as are depicted on the Plat. Any paths, walkways or trails constructed on the Conservation Property shall not be paved with asphalt or concrete or other hard surfaces. The parties acknowledge that a portion of the Hunter Creek Trail passes through the Conservation Property. To the maximum extent practical, any paths, walkways or trails on the Conservation Property shall not be constructed, repaired or 3 Acine'46201613 I maintained with the aid of motorized vehicles of any sort. It is contemplated that Grantee wilt construct an extension of the Hunter Creek Trail across a portion of the Conservation Property. In so doing,Grantee may need to erect a bridge across Hunter Creek at a point generally lying at the southeast corner of Rubey Subdivision, Lot 5 and as depicted on the Plat thereof. To the maximum extent practical, all access, staging,construction or other activity related to erection of the bridge shall occur on the south bank of Hunter Creek in the vicinity of the Hunter Creek Trail as it is currently situated and not on the Conservation Property. If extension of the Hunter Creek Trail along the specific course depicted on the Plat of the Conservation Property proves problematic in light of local, State or Federal laws and regulations (including wetlands regulations), Grantee may relocate the extension only with Grantor's permission,which shall not be unreasonably withheld, pursuant to the rights reserved by Grantor in Section 5 hereof, provided that Grantee's proposed route will not injure or detract from the Conservation Values of the Conservation Property and will not injure or detract from the remainder of the Rubcy Subdivision as determined by Grantors. 3.4 Fences. The existing 6' chain link fence along the west boundary of the Conservation Property, along the boundary with Red Mountain Road, is a wildlife barrier and shall he removed. Other existing fences may be repaired and replaced, and new fences may be built anywhere on the Conservation Property for purpose of reasonable and customary management of wildlife and to prevent persons or animals from trespassing, provided such fences do not have a material adverse impact on the Conservation Values of the Easement. Fences shall be constructed so as to permit migration of wildlife across the Conservation Property 3.5 Rodent Control. Grantor may control rodents and other problem animals by the appropriate use of legal control techniques. Wherever possible,all measures used for such control shalt be limited in their application to specific animals which Grantee shall have determined to be a nuisance and in a manner which is not inconsistent with the Conservation Values. Grantor shall use such rodent control techniques so as to not have an adverse impact on irrigation and agricultural activities down gradient of the Conservation Property. 3.6 Weeds. Grantor shall have the responsibility to control noxious weeds in a manner consistent with state laws, subject to the following: (a) all control techniques shall be consistent with the labeled instructions of the application materials which constitute the reasonable minimum necessary to control and/or eradicate the weeds, and which reasonably minimize impacts on the Conservation Values of the Easement; (b) aerial application of any weed control shall be prohibited; (c) biological (insect)control of weeds which do not materially or adversely impact any of the Conservation Values of the Easement shall be deemed consistent with the purposes of this Easement Agreement; and (d) all weed contra] techniques shall be managed so as to not have an adverse impact on irrigation and agricultural activities down- gradient of the Conservation Property. 4. Prohibited Uses. Any activity on or use of the Conservation Property inconsistent with the purpose of this Easement Agreement is prohibited. Without limiting the generality of the foregoing, the following activities and uses are expressly prohibited: 4 Aanc462%91 R%I 4.1 Residential, Retail, Commercial or Industrial Activity. No residential, commercial, industrial or retail uses shall be allowed on the Conservation Property 4.2 Wildlife Disturbance or Harassment. Harassment of wildlife on the Conservation Property by people or domestic animals is prohibited. 4.3 Non-Native Species Neither Grantor nor Grantee shall introduce any non-native plant or animal species upon the Conservation Property. 4.4 Access. Access by any type of motorized v chicle is strictly prohibited on the Conservation Property 4.5 Construction of Buildings and Other Structures The construction of any building or other structure on the Conservation Property shall be strictly prohibited except on expressly provided in Section 3 above. 4.6 Roads. Streets and roadways of any kind or nature on the Conservation Property shall be prohibited,except in accordance with existing easements 4.7 Dumping Trash. debris, ashes, sawdust, and other non-compostable refuse may not be collected, dumped. stored or disposed of on the Conservation Property 4.8 Utilities. No above-ground utility transmission lines of any kind or purpose shall be permitted on the Conservation Property under any circumstance except in accordance with existing easements. Maintenance, repair and replacement of underground utilities existing as of November 15.2007 is permissible. 4.9 Mineral Activities. Exploration or extraction of oil, gas, and other minerals, rock,gravel. or sand found in, on, or under the Conservation Property by open-pit or surface mining methods shall be prohibited 4.10 Timber Harvesting. Timber harvesting shall be prohibited 4.11 Raptor Nests. Neither Grantor nor Grantee will cut or disturb any trees or other vegetation on the Conservation Property within 300 feet of any active raptor nest dunng its nesting season. or remove any crown trees or overstory vegetation on the Conservation Property within 300 feet of any active raptor nest at any time. However, diseased trees may be cut down and removed during the non-nesting season to abate infestations 4.12 Billboards. Billboards and commercial signs of any sort shall be prohibited on the Conservation Property. 4.13 Hazardous Materials. The storage, dumping or other disposal of toxic andor hazardous malenals or of non-compostable refuse on the Conservation Property is prohibited 4.14 Water Pollution The material degradation or pollutmn of any surface or sub-surface water on the Conservation Property shall be prohibited 5 .10\4l..\I 4.15 Hunting. No hunting of any sort shall be allowed on the Conservation Property. 4.16 No Public Access. Except in accordance with existing pedestrian trail easements shown on the Plat, no public access shall be granted on or to the Conservation Property without Grantor's express written permission, which may be denied for any or no reason. 5. Reserved Rights. Grantor reserves to itself, and to its successors and assigns, all rights accruing from their ownership of the Conservation Property, including the right to engage in, or permit or invite others to engage in, all uses of the Conservation Property that are not prohibited herein and are not inconsistent with the purpose of this Easement Agreement. These nghts include, but are not limited to, the right to exclude any member of the public from trespassing on the Conservation Property, the right to sell or otherwise transfer the Conservation Property to anyone Grantor chooses. 6. Remedies. 6.1 Injunctive Relief. Either Grantor or Grantee may bring an action at law or in equity, in a court of competent jurisdiction, to enforce the terms of this Easement Agreement, or to temporarily, preliminarily or permanently enjoin (ex parte as necessary) the violation or threatened violation of this Easement Agreement, or to require the restoration of the Conservation Property to the condition that existed prior to any injury to the Conservation Property. 6.2 Damages. Either Grantor or Grantee shall be entitled to recover damages for violation of the terms of this Easement Agreement or injury to any conservation values protected by this Easement Agreement, including without limitation, damages for the loss of scenic,aesthetic, or environmental values. 63 Emergency Enforcement. If Grantor or Grantee, in their sole discretion, shall determine that circumstances require immediate action to prevent or mitigate significant damage to the Conservation Values of the Easement, either Grantor or Grantee may pursue their remedies under this Section 6 without prior notice to the other party hereto. 6.4 Scope of Relief. Grantor's rights and Grantee's rights under this Section 6 shall apply equally in the event of either actual or threatened violations of the terms of this Easement Agreement. Grantor and Grantee agree that their respective remedies at law for any violation of the tents of this Easement Agreement are inadequate and that the prevailing party shall be entitled to the injunctive relief described in Section 6.1, both prohibitive and mandatory, in addition to such other relief to which the prevailing party may be entitled, including specific performance of the terms of this Easement Agreement, without the necessity of providing evidence of either actual damages or the inadequacy of otherwise available legal remedies. Grantee's and Grantor's remedies described in this Section 6 shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity. 6.5 Costs of Enforcement. All reasonable costs incurred by Grantor or Grantee in enforcing the terms of this Easement Agreement including, without limitation costs 6 Aurcc4462R9168I and expenses of suit and reasonable attorneys' fees, and any cost of restoration necessitated by any party's violation of the terms of this Easement Agreement. shall be borne by the non- prevailing party in litigation. 6.6 Forbearance; No Waiver. Forbearance by Grantor or Grantee to exercise their rights under this Easement Agreement in the event of any breach of any term of this Easement Agreement shall not be deemed or construed to be a waiver of such rights, nor shall any subsequent breach of the same or any other term of this Easement Agreement be deemed to be exempt from the remedies provided herein. No delay or omission in the exercise of any right or remedy upon any breach shall impair such nght or remedy or be construed as a waiver. 6.7 Waiver of Certain Defenses. Grantor and Grantee hereby waive any defense of lathes,estoppel or prescription. 6.8 Acts Beyond Grantor's or Grantee's Control. Nothing contained in this Easement Agreement shall be construed to entitle either party hereto to bnng any action against the other party hereto for any injury to or change in the Conservation Property resulting from causes reasonably beyond one party's control, including, without limitation, fire, flood, storm, and earth movement, or from any prudent action taken by either patty hereto to prevent, abate,or mitigate significant injury to the Conservation Property resulting from such causes. 7. No Public Access. No right of access by the general public to any portion of the Conservation Property is conveyed by this Easement Agreement. Grantor, Grantee and their agents or contractors shall have a right of access to the Conservation Property for purposes of management and use of the Conservation Property consistent with the terms hereof. The parties acknowledge the existing right of public access along the hunter Creek Trail as shown on the Plat as the same may be relocated pursuant to paragraph 3.3 above. 8. Costs, Liabilities and Taxes; Indemnities. 8.1 Costs of Maintenance. Grantor hereby assumes all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the Conservation Property, Including the maintenance of adequate liability insurance coverage; except that Grantee shall assume all costs and responsibility for operation, upkeep, and maintenance of the public trail which passes through the Conservation Property Grantor and Grantee shall keep the Conservation Property free of any liens arising out of any work performed for, material furnished to,or obligation incurred by them, respectively. 8.2 Taxes. Grantor shalt pay before delinquency all taxes, assessments, fees, and charges of whatever descnption levied on or assessed apinst the Conservation Property by competent authority (collectively "taxes"), including any taxes imposed upon, or incurred as a result of, this Easement Agreement, and shall furnish Grantee with satisfactory evidence of payment upon request 8.3 Indemnities. 7 Ac,rvd462B9165 I 8.3.1 Grantor shall be responsible for: (I) the negligent actions of its officials, employees, and agents in the performance or failure to perform their obligations pursuant to this Easement; (2) injury to or the death of any person, or physical damage to any property, proximately caused by any intentional or negligent act or omission of Grantor, its officials, employees, or agents related to or concerning the Property; and (3) the presence or release of hazardous or toxic substances on, under or about the Property, and all claims, demands, liability, damages, or costs caused thereby, unless such substance was introduced onto the Property by the public using the Hunter Creek Trail or trespassing or by Grantee or any of its officials, employees or agents. For the purpose of this paragraph, hazardous or toxic substances shall mean any hazardous or toxic substance which is regulated under any federal, state or local law. In assuming responsibility under this paragraph, the Grantor in no way assumes responsibility for the intentional or negligent acts or omissions of Grantee, its officers, employees or agents Nothing in tins easement shall be construed as giving rise to any right or ability of the Grantee to exercise physical or managerial control of the day-to-day operations of the Property,or of any of Grantor's activities on the Property,or otherwise become an"operator" within the meaning of The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 as amended or any other federal, state, or local law or regulation making operators of property responsible for the remediation of environmental contamination. 8.3.2 Grantee shall be responsible for (I) the negligent actions of its officials, employees, and agents in the performance or failure to perform their obligations pursuant to this Easement; and (2) injury to or the death of any person, or physical damage to any property, proximately caused by any intentional or negligent act or omission of Grantee, its officials, employees, or agents related to or concerning the Conservation Property or the use of the public trail which passes through the Conservation Properly. In assuming responsibility under this paragraph, the Grantee in no way assumes responsibility for the intentional or negligent acts or omissions of Grantor,its officers,employees or agents. 9. Representation and Warranties_ Grantor represents and warrants, to the best of its current actual knowledge without a duty of investigation,as follows: 9.1 No substance defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting,or otherwise contaminating to the air, water, or sot I, or in any way harmful or threatening to human health or the environment exists or has been released, generated, treated, stored, used, disposed of, deposited, abandoned,or transported in,on,from, or across the Conservation Property. 92 There are no underground storage tanks located on the Conservation Property, whether presently in service or closed, abandoned, or decommissioned, and no underground storage tanks have been removed from the Conservation Property in a manner not in compliance with applicable federal,slate,and local laws,regulation,and requirements. 9.3 Grantor and the Conservation Property are in compliance with all federal, state, and local laws, regulations, and requirements applicable to the Conservation Property and its use. 8 Acme.'462A9161i I 9.4 No civil or cnminal proceedings or investigations have been instigated at any time or are now pending, and no notices, claims, demands, or orders have been received, arising out of any violation or alleged violation of, or failure to comply with,any federal, state or local law, regulation, or requirement applicable to the Conservation Property or its uses, nor do there exist any facts or circumstances that Grantor might reasonably expect to form the basis for any such proceedings, investigations,notices,claim,demands,or orders. 10. Extinguishment and Condemnation. 10.1 If circumstances arise in the future that render the purpose of this Easement Agreement impossible to accomplish, this Easement Agreement can only be terminated or extinguished, whether in whole or in part, by(a)judicial proceedings in a court of competent jurisdiction or(b) by the written agreement of the owners of both the Easement and fee simple title to the Conservation Property. 10.2 In granting the Easement. Grantor has considered the possibility that uses prohibited by the terms of this Easement Agreement may become more economically valuable than permitted uses, and that neighboring properties may in the future be put entirely to such prohibited uses. It is the intent of both Grantor and Grantee that any such changes shall not be deemed to be circumstances justifying the termination or extinguishment of this Easement Agreement In addition, the inability of Grantor, or its successors, or assigns, to conduct or implement any or all of the uses permitted under the terms of this Easement Agreement, or the unprofitability of doing so, shall not impair the validity of this Easement Agreement or be considered grounds for its termination or extinguishment. 103 In the event the Easement is extinguished by condemnation or other involuntary conversion, the Grantee's share of the condemnation proceeds shall be determined according to the following formula: Grantee's Share of Condemnation Proceeds shall equal the Fair Market Value of the Easement divided by the Fair Market Value of the Conservation Property. The fee owner of the Conservation Property shall receive the remaining condemnation proceeds. II. Assignment. The Easement is transferable by Grantee, but Grantee may only assign its rights and obligations under this Easement Agreement to an organization that is (a) either a governmental entity or a qualified organization at the time of transfer under Section 170(h) of the Internal Revenue Code of 1986, as amended (or any successor provision then applicable) (the "Code"), and the applicable regulations promulgated thereunder and (b) authorized to acquire and hold conservation easement under Colorado law. Upon such transfer, Grantee shall have no further obligation or liability under this Easement Agreement. Pursuant to Treasury Regulation Section 1.170A-14(c)(2), any future transfer of the Easement must be made to an Eligible Donee. An Eligible Donee is defined as an organization that will protect the conservation purposes of the donation, and has the resources to enforce the restrictions in the Easement. 12. Amendment. If circumstances arise under which an amendment to or modification of this Easement Agreement would be appropriate, Grantor and Grantee are free to 9 Acti,c'461S9I6g I Jointly amend this Easement Agreement, provided that no amendment shall allow further division or subdivision of the Conservation Property, nor allow the construction of buildings or structures, nor permit uses of the Conservation Property, except as otherwise permitted herein. Any such amendment shall be recorded in the real estate records of Pitkin County,Colorado. 13. Subsequent Transfers. Grantor agrees to incorporate the terms of this Easement Agreement by reference into any deed or other legal instrument by which it divests itself of any interest in all or a portion of the Conservation Property. The failure of Grantor to incorporate this Easement Agreement into any deed shall not impair the validity of this Easement Agreement or limit its enforceability in any way. 14. Notices. Any notice required or permitted under this Agreement shall be in writing and shall be hand-delivered or sent by registered or certified regular mail, postage pre- paid and via e-mail (electronic delivery) to the mailing and e-mail addresses set forth below Each part) by notice sent under this paragraph may change the address to which future notices should be sent. Electronic delivery of notices shall be considered delivered upon receipt of confirmation of delivery on the part of the sender. GRAN I OR: RED MOUNTAIN ESTATES,LLC Ann: Daryl Snadon 15280 Addison Road, Suite 301 Addison,TX 75001 Copy to. R. Joseph Krahacher, Esq. SHERAM.AN&HOWARD,LLC 730 E Durant Avenue, Suite 200 Aspen, Colorado 81611 jkrabacherr shermanhoward.com GRANTEF Pitkin County Board of County Commissioners 123 Emma Road Suite 106 Basalt, CO 81621 ('upr to. Pitkin County Attorney 123 Emma Road Suite 204 Basalt, CO 8162] attomevlmpitkincounty corn l0 Acnvc JVR9IM1R I 15. General Provisions. 15.1 Controlling Law. The interpretation and performance of this Easement Agreement shall be governed by the law of the State of Colorado. 15.2 Liberal Construction. Any general r:ule of construction to the contrary notwithstanding, this Easement Agreement shall be liberally construed in favor of the grant to effect the purpose of the Easement, the policy and purpose of the Conservation Easement Statute and the policy and purpose of Section 170 of the Code and the regulations promulgated thereunder. If any provision in this instrument is found to be ambiguous an interpretation consistent with the purpose of this Easement Agreement that would render the provision valid shall be favored over any interpretation that would render it invalid. 15.3 Severability. If any provision of this Easement Agreement, or the application thereof to any person or circumstances, is found to be invalid, the remainder of the provisions of this Easement Agreement, or the application of such provision to person or circumstances other than those as to which it is found to he invalid, as the case may be, shall not be affected thereby. 15.4 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 agreement relating to the Easement,all of which are merged herein 15.5 No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Grantor's title in any respect. 15.6 Successors and Assigns; Covenant Running With the Land. The covenants, terms, conditions and restrictions of this Easement Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective personal representatives, heirs, successors, and assigns and the Easement shall be deemed a covenant running with the land described herein as the Conservation Property. The terms "Grantor" and "Grantee," wherever used herein, and any pronoun used in place thereof, shall include, respectively,the above-named Grantors and their successors and assigns, and the above- named Grantee and its successors and assigns. 15.7 Termination of Rights and Obligations. A party's rights and obligations under this Easement Agreement shall terminate upon transfer of the party's interest in the Easement or in the Conservation Property (as the context may require), except that liability for acts or omissions occumng prior to transfer shall survive transfer. 15.8 Counterparts. The parties may execute this instrument In two or more counterparts, which shall, in the aggregate, be signed by both parties: each counterpart shall be deemed an original instrument as against any party who has signed it. 15.9 Interpretation. If any reserved right of Grantor under this Easement Agreement is found to be not in compliance with Section 170(h) of the Code, or any regulations promulgated thereunder, then such provision shall be interpreted and applied in such a manner as l Act'vc'462591 EyI to be in compliance with Section 170(h) of the Code, and any regulations promulgated thereunder. 15.10 Further Assurances. In addition to the acts and deeds recited herein and contemplated to be performed, executed and/or delivered by Grantor and Grantee, Grantor and Grantee agree to perform, execute and/or deliver from time to time any and all such further acts, deeds and assurances as may be reasonably required to effect the Conservation Values. Grantee shall, upon Grantor's request,execute Internal Revenue Service form 8283 confirming Grantee's receipt of the Easement. 16. Warranty of Title. Grantor warrants that it has good and sufficient title to the Conservation Property,that it has good right, full power and lawful authority to grant and convey the Easement, that there are no mortgages or liens on the Conservation Property, and Grantor hereby promises to warrant and forever defend the title to the Easement in the quiet and peaceable possession of Grantee, its successors and assigns, against all and every person or persons lawfully claiming the whole or any part thereof. 17. Perpetual Term. The term of this Easement is perpetual. IN WITNESS WHEREOF Grantor and Grantee have caused to be executed this Easement Agreement as of the day first wntten above. GRANTOR'S AND GRANTEE'S SIGNATURE PAGES FOLLOW BELOW • 12 Acnvcao2X9I I GRANTOR: 1 t 0UNTAIN TATES,LLC '� / I B ��/ Daryl N. S,. : ager State of Colorado ) )ss County of Pitkin ) fit. n�� Acknowledged before me this /8 day of �tr.0265 1- 2017 by Daryl N. Snadon as Manager of Red Mountain Estates, LLC. WITNESS my hand and official seal. My commission expires: 4G4'a4...13 ae- CHERYL HEBERGER Q STATE OF COLORADO No ry Public NOTARY 199511272, .n ' ION tx^w GRANTEE'S SIGNATURE PAGE FOLLOWS BELOW 13 Active/462W b%1 GRANTEE: PITKIN COUNTY�BOARD OF COUNTY COMMISSIONERS George Neuman Chairperson ATTEST: APPROVED AS TO FORM. 1 / By: I By. I11Iytttfirt John Ely,County.Attorney • 5faiLiett X STATE OF COLORADO ) )ss. COUNTY OI PITKIN ) GL C 1/ I Subscribed and sworn to before me this '�a day of,�,..ppl✓24 Ariz 2017, by George Newman as Chairperson of the Pitkin County Board of County ConYmissioners. Witness my hand and official seal. _ 1 My commission expires: 't c h..)_/CA- r---- JrWFT JONES I ') �' 1'Lf.E J/4'l� NOTPk'%7t18tJC Notary Public / STAT' .F C 3RADO NOTA "t i99650029.R6 W0710D1T71 Dna°,.7rPkaib2,211 U 14 ncuvdib]fi9I FPI LIENHOLDER CONSENT The undersigned, being the beneficiary under that certain Deed of Trust, Assignment of Leases and Rents, and Security Agreement, granted by Red Mountain Estates, LLC, a Colorado limited liability company, and recorded February 16, 2016 as Reception No. 627062, hereby consents to the foregoing Amended and Restated Conservation Easement and Agreement, Lot 2 Rubey Subdivision and hereby subordinates any interest that the beneficiary may have in and to Lot 2 Rubey Subdivision to the Amended and Restated Conservation Easement and Agreement, Lot 2 Rubey Subdivision. n Executed this� ' day of AI]5✓.Sr, 2017 The Northern� Trust Company By: "I M.U" O3XX'" Matt Adams, Vice President (Statement of Authority recorded at Reception No.640224) STATE OF TEXAS )ss COUNTY OF DALLAS ) The foregoing Lienholder Consent was acknowledged before me this (f day of at_ S(_ , 2017,by Matt Adams as Vice President of The Northern Trust Company. Witness my hand and official seal.My commission expires: 441_k, L(,uo(.( - --- FMIIYPELIIDiT Notary C Notary 0112820]I]1 MyCommisson Expire Jan 27,201 1 15 As/AE/46289168 I I;b, AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY,COLORADO,ATTENDING THE RUDEY SUBDIVISION CONSERVATION EASEMENT AND AGREEMENT ORDINANCE NO. d/9 -2017 RECITALS: t. Pursuant to 30-35-301 CRS.,the Board of County Commissioners("BOCC")of Home Rule Counties 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 Home Rule Charter("BRC"),the 130CC is authorized to take official action by Ordinance for certain matters where action is prescribed pursuant to the Colorado Revised Statues as amended. 3 The Voters of Pitkin County and the Board of County Commissioners of Pitkin County (BOCC)established an Open Space and Trails Fund for the purposes of acquiring, preserving,managing,and maintaining open space and trails assets and resources, and established an Open Space and Trails Board of Trustees (OSTB)to guide the expenditure of those funds. 4. The Open Space and Trails Program(OST)is charged with protecting agriculture, open space,habitat,scenic view planes,water rights and river access. 5. The Rubey Subdivision Conservation Easement and Agreement was granted to Pitkin County and recorded on November 15, 2007,and recorded at reception number 544082 (the "Conservation Easement"). 6. The owner of Lot 2,Rubey Subdivision,discovered an error regarding the location of a 20.00' Water Line Easement represented on the 1041 Hazard Rcvaew Site Plan and Amended Nat of Lot 2,Rubey Subdivision which is referenced and incorporated in the Conservation Easement. 7. On August 19,2010, the Pitkin County OSTB adopted a policy on Conservation Easement Amendments that provides a frtmework to analyze when and why an amendment to a conservation easement may be warranted. 8. In compliance with the aforementioned policy, the OSTB reviewed the information and recommended approval of the amendment to the Conservation Easement,to cure an error or ambiguity,at their June 6,2017 board meeting. I 9. The BOCC finds that adoption of this ordinance is in the best interest of the citizens of Pitkin County NOW,THEREFORE,BE IT ORDAINED by the Board of County Commissioners of Pitkin County, Colorado that it hereby adopts an ordinance amending the Rubey Subdivision Conservation Easement and Agreement to add the phrase"Maintenance,repair and replacement of underground utilities existing as of the date of the conveyance is permissible;'and authorizes the Chair or the Chair's designee to sign the Ordinance and upon the satisfaction of the County Attorney as to form, execute any other associated documents necessary to complete this matter. Signature page follows 2 INTRODUCED AND FIRST READ ON THE 28th DAY OF JUNE,2017 AND SET FOR SECOND READING AND PUBLIC HEARING ON THE 12'"DAY OF JULY,2017. NOTICE OF PUBLIC HEARING AND 111 LE AND SHORT SUMMARY OF THE REIOLUTION PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE pin- DAY OF vlt. ,2017. NOTICEOFPUBLIC HEARING AND THE FULL TEXT OF THE RESOLUTION POSTED ON THE OFFICIAL ITKIN COUNTY WEBSITE (www.pitkincounty.com)ON THE if-yt DAY OF V( 2017. ADOPT D AFTER FINAL READING AND PUBLIC HEARING ON THE /�v. DAY OF U( 2017. PUBLISHED BY TITLE AND SHORT SUMMARY,AFTER ADOPTION, IN THE ASPEN TIMES WEEKLY ON THE °/0C' DAY OF A IA i ,2017. POSTED BY TITLE AND SHORT SUMMARY ON THE OFFICIAL PITKIN COUNTY WEBSITE(www.pitkincounty.com)ON THE / DAY OF a l . A . T: BOARD OF COUNTY COMMISSIONERS • I1 am' By ! ' % 1 BBy,/ r Ye. r'. Jones _ • George Ne . 1,Chai Dept County Clerk / Date:of/ 9 APPROVED AS TO FORM: MANAGER APPROVAL John El : • : ey on Peacock, County Manager Gary Tennenbaum,OST Director 3 4/1Q O/9- Y4/1 CERTIFICATE OF OWNERSHIP The undersigned, an Attorney licensed to practice law in the State of Colorado under Colorado Supreme Court Registration No. 10240. hereby certifies the ownership of the following real property located at 200 American I ane. Aspen. Pitkin County.Colorado(the "Property"!. A. PROPERTY Lot 2. RIIBEY SUBDIVISION according to the plat recorded December 20, 1976 in Phil Book 5 at Page 41; the Amended Final Plat recorded in Plat Book 36 at Page 76; the 1041 Hazard Review Site and Amended Plat of tot 2, Rubey Subdivision recorded November 15, 2007 in Plat Book 85 at Page 60; the Lot 2, Rubey Subdivision Activity Envelope and Site Plan recorded August 8.201.7 in Plat Book 119 at Page 95 as Reception No. 640527; and the Lots 1, 2 & 5, Rubey Subdis inion Exemption Plat for Minor Plat Amendment recorded August 8, 2017 in Plat Book 119 at Page 96-101 as Reception No. 640528. COUNTY OF PITKIN. STATE OF COLORADO B. The names oral! owners of the property are as follows: RED MOUN rAIN ESTATES.LLC.A COLOR ADO:_IatITH)LIAI3 LIT\ COSIPANy C. I hereby further certify that as of the date hereof. the Property is subject to the following encumbrances of record (all references are to the Pitkin County, Colorado Clerk & Recorder's Records): 1. Right of the proprietor of a vein or lode to extract and remote his ore therefrom, should the same be found to penetrate or intersect the premises hereby granted, as reserved in United States Patent recorded December N. 1902 in Book 55 at Page 116 as Reception No. 67875. 2. Right of way for pipes and mains across Smuggler Ranch, granted to David R.C. Brown as set forth in instrument recorded May 18. 1885 in Book 24 at Page 59 as Reception No. 10069 as it affects subject property, 3. Rights of way granted to James K. Devereux, as set forth in instrument recorded January 20, 1887 in Book 29 at Page 582 as it affects subject property. 4. Easement recorded October 18. 1967 in Book 230 at Page 41. 5. All matters shown on the Plat of Rube' Subdivision recorded December 20. 1976 in Nat Book 5 at Page 41. 6. Resolution by Board of County Commissioners recorded January 13, 1977 in Book 323 at Page 367. Lot 2 Rubey Subdivision Parcel ID No. 2737072030112 40413]}5 I 7. Subdivision Improvements Agreement recorded January 13, 1977 in Book 323 at Page 368. 8. Easement and right of way fir Salvation Ditch recorded June 10, 1952 in Book 180 at Page 24. 9. Easement recorded June 29, 1984 in Book 468 at Page 840. 10. Acknowledgment and Agreement Concerning Ditch Easement recorded February 8, 1988 in Book 556 at Page 581. 11, Agreement for Carriage of Water recorded June 7. 1988 in Book 565 at Page 877. 12. Resolution by Pitkin County recorded September 27. 1994 in Book 762 at Page 420 as Reception No. 374618. 13. Occupancy Deed Restriction and Agreement recorded May 2, 1996 as Reception No. 392315. 14. Administrative Decision recorded April 21. 2006 as Reception No. 523231. 15. Holy Cross Energy Underground right of way easement recorded August 4. 2000 as Reception No. 445797 and as Reception No. 445798 and Reception No. 445799. 16. All matters shown on the Amended Plat of Loll Rubey Subdivision recorded March 15, 1995 in Plat Book 36 at Page 76 and the 1041 Hazard Review Site Plan and Amended Plat recorded November 15. 2007 in Plat Book 85 at Page 60 and Amended Final Plat of Lot 1, Rubey Subdivision recorded November 25, 19% in Plat Book 41 at Page 9 correcting the alignment of a portion of the 24 foot private road and utility easement as it affects 1 of 2. 17. Resolution recorded October 30, 2006 as Reception No. 540410 and rerecorded November 15. 2011 as Reception No. 584345, 18. Rubey Subdivision Vested Property Rights and Development Agreement recorded November 15. 2007 as Reception No. 5441181 and rerecorded November 15, 2011 as Reception No. 584346. 19. Conservation Easement and Agreement recorded November 15. 2007 as Reception No. 544082. 20. Agreement and Declaration of Restrictive Covenants recorded November 21. 2007 as Reception No, 544290. 21. Deed Restriction Agreement and Declaration of Restrictive Covenants recorded 2 Lot 2 Rubey Subdivision Parcel 16 No. 3 71 7 30.00 1M]37.0 � November 21. 2007 as Reception No. 544289 and First Amendment recorded December 15. 2008 as Reception No. 555062 as they affect subject property. 2Z Common Access Road Relocation and Basement Agreement recorded February 12, 2016,as Reception No. 627046. 23. Improvements Agreement recorded February 12, 2016,as Reception No. 627047. 24, Ruhey Subdivision Construction and Maintenance Agreement recorded February 12. 2016. as Reception No. 627049. 25. l Omitted]. 26. Deed of Trust Assignment of Leases and Rents and Security Agreement and of Rents), from Red Mountain Estates. LLC. a Colorado limited liability company, to the Public Trustee of Garfield County for the benefit of The Northern Trust Company. to seene an indebtedness in the principal sum of 57,700,000 00, dated January February I. 2016. and recorded February 16. 2016.as Reception No. 627042. 27. i'erms and conditions of Ordinance No. 5. Serres of 2016, recorded May 25, 2016 as Reception No. 629560. 28. City of Aspen Water Service Agreement(Existing Development Outside City Limits)recorded May 25, 2016,as Reception No. 629561 of the Pitkin County Records. 29. Rubey Subdivision Water Facilities Easement and Vacation Agreement recorded May 25, 2016, as Reception No. 629563 of the Pitkin County Records. 30. [Omitted] 31. City of Aspen Easement Agreement recorded May 25, 2016 as Reception No. 629562. 32. Easement and Vacation Agreement recorded \lav 25. 2016 as Reception No. 629563. 33. Resolution No. YL---2016 recorded October 17, 2016 as Reception No. 633034. 34, Ditch Improv ements Agreement recorded March 14, 2017 as Reception No. 636809. 35 Easement Agreement(Lot 2 Rube} SubdivisionSalvation Ditch Company) recorded March 14, 2_017 as Reception No. 636810. 3 Lot 2 Rube}'Subdivision Parcel ID No 273707203(X/ tnn37:, I 36. Resolution No. 05-2017 of the Pitkin County Board of Adjustment granting height and front yard setback variances recorded May 17, 2017 is Reception No. 638389. 37. Trench. Conduit, and Vault Agreement recorded May 22. 2017 as Reception No. 638493. 38. Raw Water Sharing Agreement recorded May 31, 2017 as Reception No. 638815. 39. City of Aspen Water Service Agreement (Existing Development Outside City Limits) recorded June 20. 2017 as Reception No 639279. 40. Administrative Decision No 42-2017 of the Community Development Director of Pitkin County recordcd August 8, 2017 as Reception No. 640525. 41. Lot 2. Rubey Subdivision Activity Envelope and Site Plan recorded August 8. 2017 in Plat Book 119 at Page 95 as Reception No. 640527. 42. Lots 1, 2 & 5, Rubey Subdi\ision Exemption Plat for Minor Plat Amendment recorded August 8. 2017 in Plat Book 119 at Page 95-101 as n No. 640528. Dated: November 17. 2017. B. Joseph Krybay'her Attorney at Law 730 E. Durant Avenue, Suite 200 Aspen CO 81611 STATE OF COLORADO ) ) ss COUNTY OF PITKIN The foregoing Certificate of Ownership was acknowledged before me, a Notary Public in and for the State of Colorado, by B. Joseph Krabacher, personally known to me to be the person who subscribed the within instrument this 17th day of November. 2017. Witness my hand and seal. M/yt Commission Expires. �-1.4414C4-1 CHERYL HEIBERGER ` t f""" lelz c� NOTARY PUBLIC Notaly Public IV\ STATE OF COLORADO NOTARY ID 19964002721 my COMMISSION EXPIRES 02/24/2020 4 Lot 2 Rubey Subdivision Parcel ID No 27370720300 46413735 1