HomeMy WebLinkAboutbocc.ord.043.2023AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN
COUNTY, COLORADO, AUTHORIZING ACCEPTANCE OF THE PRIDE OF ASPEN
CONSERVATION EASEMENT FROM R.D. OLSON INVESTMENTS II, LLC
ORDINANCE NO. Coil -2023
RECITALS
WHEREAS, Pursuant to 30-35-301 C.R.S., the Board of County Commissioners ("BOCC") of
Pitkin County, Colorado 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, and
WHEREAS, Pursuant to Section 2.8.1 of the Home Rule Charter ("HRC"), the BOCC is
authorized to take official action by Ordinance for certain matters where action is prescribed
pursuant to the Colorado Revised Statutes as amended, and
WHEREAS, The Voters of Pitkin County and the Pitkin County Commissioners established an Open
Space and Trails Fund for the purposes of preserving and providing open space and trails resources,
and established an Open Space and Trails Board of Trustees to guide the expenditure of those funds,
and
WHEREAS, The Open Space and Trails Program is charged with preserving open space lands, and
WHEREAS, R.D. Olson Investments II, LLC, a California limited liability company," owns mining
claims ("Pride of Aspen") on Shadow Mountain and would now like to donate a conservation
easement on these properties to our Open Space Program, and
WHEREAS, The Pride of Aspen possessed scenic, habitat, and recreational qualities which merit
preservation and stewardship under our Open Space program.
WHEREAS, On December 5th 2023, the Pitkin County Open Space and Trails Board recommended
this acquisition, and
WHEREAS, 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 and legislation to be effective immediately upon adoption, and
WHEREAS, 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 Authorizing the Acceptance of the Pride of
Aspen Conservation Easement 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 acceptance of
deeds and any other associated documents necessary to complete this matter.
1111111 IIIIlIIlIllht1IhlI1II1I Ilililti I1II11III I11IIIIII111II 1111111111111111
RECEPTION#: 699639, R: $0.00, D: $0.00
DOC CODE: ORDINANCE
Pg 1 of 20, 12/2812023 at 02:17:66 PM
Ingrid K. Grueter, Pitkin County, CO
INTRODUCED AND FIRST READ ON THE `Q DAY OF t) (f.M,bCX , 2023 AND
SET FOR SECOND READING AND PUBLIC HEARING ON THE 2.O DAY OF
Ze.C.e.)tv1 X 2023.
NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE
ORDINANCE PUBLISHED IN THE ASPEN DAILY NEWS ON THE 7+ ' DAY OF
pose&beX , 2023.
NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE ORDINANCE POSTED
ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.itkincounty.com) ON THE
3 DAY OF NIovetbtY 2023.
ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON THE 20116' DAY
OF DeCenn.1/2c - 2023.
Af- c - A topti o ' ,
POSTED BY TITLE AND SHORT SUMMARY
n ON THE OFFICIAL PITKIN COUNTY
WEBSITE (www.itkincounty.com) ON THE 2 S}DAY OF btCPAAA,b>G'r; 2023.
PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE ASPEN
DAILY NEWS ON THE 'L12i `DAY OF -Ce'M ex- 2023.
ATTEST:
By
Sari ngen
Clerk to the Board
Itthrt County Attorney
y ,�u�
Form Revssed 01-01-2023
BOARD OF COUNTY COMMISSIONERS
r
B
Fran • e Jacober, s hair
Date:
MANAGER APPROVAL
Jon eacoc`k; oun y anager
bocc.con.266.23
Recording requested by and return to -
city of Aspen
Parks & Recreation Department
130 South Galena
Aspen, Colorado 81611
3111111111111111111111101111M111111111
RECEPTIONS: 699492, R: $0.00, D: 50.00
DOC CODE: DEED CONSERV
Pg 1 of 18, 12/2112023 at 02:01:20 PM
Ingrid K. Grueter, Pitkin County, CO
DEED OF CONSERVATION EASEMENT
PRIDE OF ASPEN
THIS DEED OF CONSERVATION EASEMENT ("Deed") is granted effective as of the
2 day of December 2023 by the R.D. Olson Investments II, LLC a California limited liability
company, whose address is 520 Newport Center Drive, Ste. 600, Newport Beach, CA 92660
("Grantor"), to the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY,
COLORADO ("BOCC"), a body corporate and politic, whose address is 530 East Main Street,
Aspen, Colorado 81611 (the County is sometimes referred to herein as the "Grantee"), for the
purpose of forever conserving the open space character, wildlife habitat, and scenic qualities of the
subject property.
WITNESS THAT:
Grantor is the sole owner in fee simple of the property (the "Property") which is specifically
described on Exhibit A hereto and depicted on Exhibit B, consisting of approximately19.329
acres of land more or less located in Pitkin County, State of Colorado and immediately adjacent to
the City of Aspen, Colorado (the "City"). The Property is a part of one of the most prominent and
important views from within the City and areas of the County near the City.
In accordance with the United States Internal Revenue Code of 1986 ("IRC") and Treasury
Regulation 1.170A-14(d)(4) regarding preservation of open space, the parties agree and
acknowledge that the preservation of the Property will yield a significant public benefit and will
add to the scenic and open space character of the landscape in Pitkin County and as viewed from
the City. The Property qualifies as open space because it will be preserved for the scenic enjoyment
of the general public and is preserved pursuant to a clearly delineated governmental conservation
policy. Conservation of the Property will further yield a significant public benefit.
• Scenic Enjoyment. The Property lies within a mapped Environmentally Sensitive Area
designated by the City and adds to the scenic character of the local rural landscape in which
it lies, and provides a degree of openness, contrast and variety to the overall landscape. The
Property is adjacent to the City of Aspen and provides a critical and very prominent view
area. A portion of the Property is visually accessible to the general public from most of the
City of Aspen as well as from Colorado Highway 82 and from Castle Creek Road, which
are open to and actively used by residents of Pitkin County and the State of Colorado, and
from public lands and trails on and surrounding Aspen, a popular recreational destination.
The terms of the Easement do not permit future development on the Property that would
interfere with the essential scenic quality of the land.
• 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:
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o Local Policies: Conservation of the Property helps to maintain a valuable open
space resource. The City of Aspen addresses the need for protecting open space in
its Home Rule Charter, which contains the Open Space/Trails Program under
Article XIII and through its Environmentally Sensitive Areas regulations which
discourages development above the 8,040 elevation level for scenic protection
purposes. Similarly, 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. Under both Home Rule Charters, criteria
for open space acquisitions include: (1) Areas within public scenic view -plains; (2)
Incorporating or protecting significant wildlife habitat; (3) Protecting recreational
opportunities such as trails; and (4) protecting other public lands from the impacts
of development.
o Statewide Policies: The State of Colorado has recognized the importance of private
efforts toward the preservation of natural systems in the State by the enactment of
several sections of Colorado Revised Statutes ("C.R.S.") (see below).
• Significant Public Benefit. The Property is a unique part of a rural, mountainous area of
Pitkin County, where there is a trend toward residential development in the near vicinity.
The City of Aspen is immediately adjacent to the Property. There is a strong likelihood that
development of the Property would contribute to degradation of the scenic and natural
character of the area. Preservation of the Property will continue to provide an opportunity
for the general public to appreciate its scenic values and will increase the amount of
conserved lands. Further, Grantor has granted to the Grantee the right to construct and
maintain non -motorized, recreational trails and associated connections to or re-routing of
other trails through the Property for the public benefit.
In accordance with the IRC and Treasury Regulation 1.170A-14(d)(3) regarding the
protection of a natural environmental system or habitat, preservation of the Property will provide
significant relatively natural habitat in which wildlife, plant communities, or similar ecosystems
normally live.
• Relatively Natural Habitat. The native plant communities on the Property are in excellent
condition. The Property provides access to Castle Creek for wildlife and riparian habitat
along Castle Creek. The Colorado Parks and Wildlife Big Game Species Wildlife Habitat
Mapping shows the property to include: Elk Winter Range and Elk Overall Range; Mule
Deer Summer Range and Mule Deer Overall Range; and Black Bear Fall Concentration
and Overall Range.
• Open Space [§ 1.170A-14(d)(4)]. The Property qualifies as open space because it will be
preserved for the scenic enjoyment of the general public and is pursuant to a clearly
delineated governmental conservation policy. Conservation of the Property will further
yield a significant public benefit.
In accordance with the IRC and Treasury Regulation 1.170A-14(d)(4)(ii) regarding scenic
enjoyment, this Deed provides for the preservation of land for the scenic enjoyment of the public.
Preservation of the Property is important to maintaining the scenic character of the local rural
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landscape. The Property is visually accessible to the general public traveling along Colorado State
Highway 82, Castle Creek Road and within most of the City of Aspen, as described above.
The open space character, wildlife habitat, and scenic qualities of the Property collectively
represent the "Conservation Values" of the Property as such term is used throughout this Deed.
These Conservation Values are of great importance to the Grantor, the people of the City, the
people of Pitkin County, and the people of the State of Colorado.
A collection of baseline data on the Property and its resources (the "Baseline
Documentation") shall be prepared by Grantee as soon as practicable following conveyance of this
Conservation Easement to Grantee. The Baseline Documentation shall be the property of and shall
be deemed owned by the Grantee with a copy to be provided to the Grantor. The Grantor hereby
grants Grantee or Grantee's agent(s) access to the portions of the Property necessary in order to
prepare the Baseline Documentation. 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. Grantee shall bear the expense of the
preparation of the Baseline Documentation.
The parties agree that, in the event a controversy arises with respect to the nature and extent
of the biological or physical condition of the Property, the parties shall not be foreclosed from
utilizing all other relevant or material documents, surveys, reports, and other information to assist
in the resolution of the controversy.
The conservation purposes of this Deed are recognized by, and the grant of this Deed will
serve, at least and without limitation, the following clearly delineated governmental conservation
policies:
■ Colorado Revised Statutes §§38-30.5-101, 102, et seq., providing for the
establishment of conservation easements to maintain land "in a natural, scenic or open condition,
or for wildlife habitat, or for agricultural * * * or other use or condition consistent with the
protection of open land having wholesome environmental quality or life -sustaining ecological
diversity, * * *."
■ The Colorado Wildlife and Parks and Outdoor Recreation statutes, Colorado
Revised Statutes §33-1-101, et seq., which provide that "it is the policy of the state of Colorado
that the wildlife and their environment are to be protected, preserved, enhanced, and managed
for the use, benefit and enjoyment of the people of this state and its visitors."
■ The City of Aspen Home Rule Charter, Article XIII, Open Space/Trails.
■ The Pitkin County Land Use Code which states that the preservation of wildlife
habitat and open space conforms with Policies 2-120 (Scenic Quality), 2-160 (Wildlife
Management), 2-280 (Compatibility with Public Lands), and 2-290 (Access to Public Lands).
■ Colorado Revised Statutes §38-30.5-102, provides for the establishment of
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conservation easements to maintain land "in a natural, scenic, or open condition, or for wildlife
habitat, or for agricultural * * * or other use or condition consistent with the protection of open
land, environmental quality or life -sustaining ecological diversity."
■ The Colorado Wildlife and Parks and Outdoor Recreation statutes, Colorado Revised
Statutes §33-1-101 and §33-10-101, which provide, respectively, that "it is the policy of the state
of Colorado that the wildlife and their environment are to be protected, preserved, enhanced, and
managed for the use, benefit, and enjoyment of the people of this state and its visitors" and that "it
is the policy of the state of 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 Colorado Department of Transportation statutes, Colorado Revised Statutes §43-
1-401, et seq., provide that the "preservation and enhancement of the natural and scenic beauty of
this state" is a substantial state interest.
■ 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."
The Grantee is a "qualified conservation organization" as defined by the IRC and accepts
the responsibility of enforcing the terms of this Deed and upholding its conservation purposes
forever.
Grantor intends that the property interest conveyed by this Deed to Grantee be for the
exclusive purpose of assuring that, under Grantee's perpetual stewardship, the Conservation
Values of the Property will be conserved and maintained forever, and that uses of the land that are
inconsistent with these Conservation Values or that would substantially diminish or impair the
Conservation Values will be prevented or corrected. The parties agree, however, that nonmotorized
trail uses and improvements on the Property are consistent with the conservation purposes of this
Deed.
NOW, THEREFORE, for and in consideration of the facts recited above and of the mutual
covenants contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby confessed and acknowledged, Grantor hereby grants and conveys
to Grantees, and their assigns, a perpetual conservation easement in gross, pursuant to Section 38-
30.5-101, et seq., Colorado Revised Statutes, over, across and upon the Property, subject to the
terms and conditions hereinafter set forth (the "Conservation Easement"). Grantees hereby
acknowledge, accept without reservation and agree to be bound by the terms and conditions of this
Conservation Easement.
1. Purpose. It is the essential purpose of this Conservation Easement to preserve and
protect, in perpetuity, the natural, ecological, wildlife habitat, open space, and scenic values (the
Conservation 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. 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
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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. Notwithstanding
the foregoing, nothing herein shall prohibit Grantee from safely and sensitively developing non -
motorized, recreational trails on, over or through the Property.
2 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;
C. Subject to compliance with any applicable land use entitlement or review
process, constructing, developing, maintaining, repairing and replacing non -motorized,
recreational trails on, over or through the Property; and
D. 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.
3. 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 and it shall be Grantees' obligation to enforce these
covenants and restrictions in the manner described below. However, 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.
A. Structures. The construction of any building or other structures, other than
as specifically permitted under the terms of this Conservation Easement, is prohibited.
B. Fences. Grantor may, but shall not be obligated to replace, repair or improve
any existing fences on the Property and erect new fencing provided such new or replaced fencing
is consistent with then -current Colorado Division of Wildlife ("CDOW") guidelines for fencing
located within 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.
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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 of 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, for firewood and for other domestic uses, including
construction of fences on the Property, and as minimally necessary for purposes of construction,
maintenance, repair and replacement of recreational trails.
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. Grantor makes no
warranties or representations concerning the existing mining waste materials on the Property and
shall have no obligation to remove or remediate such mining waste.
H. Paving, Road & Trail 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 or trail on or permitted to hereafter be constructed
on the Property. After reasonable notice to Grantee, any such road or trail 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 farm -related trash and refuse produced on the Property, is strictly prohibited.
Grantee shall be responsible for removal of any trash, refuse, liter or other waste left on the
Property by members of the public.
J. Recreational Uses and Improvements. Other than non -motorized
recreational trails, no recreational building, structure or improvement shall be built on the Property,
including but not limited to, restrooms, washing facilities, trash enclosures, athletic fields, golf
courses or ranges, race tracks, airstrips, helicopter pads, or shooting ranges. 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 § 2031(c)(8)(B), IRC, and the Treasury Regulations adopted
pursuant thereto. Non -motorized recreational uses are permitted only if they are (i) not
commercial; (ii) on trails approved by the Grantee for non -motorized use; and (iii) conducted in a
manner that would not substantially diminish the Conservation Values.
K. Motorized Vehicles. Motorized vehicles may only be used for construction
and maintenance of non -motorized hiking and biking trails and shall be used in a manner that does
not substantially diminish or impair the Conservation Values of the Property. There shall be no
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off -road vehicle courses for snowmobiles, all -terrain vehicles, motorcycles, E-Bikes or electric
bicycles, or other motorized vehicles. Recreational use of motorized vehicles is prohibited.
L. Camping/Commercial Uses/Hunting. No camping shall be allowed on the
Property. No industrial or commercial uses shall be allowed on the Property. No hunting is allowed
on the Property.
M. Signage or Billboards. No commercial signs, billboards, awnings, or
advertisements shall be displayed or placed on the Property, except for any trail signs if a trail is
constructed on the Property, "no trespassing" signs, and signs informing the public of the status of
ownership. A plaque, in a location, form and substance subject to the reasonable approval of
Grantor, shall be installed on the Property recognizing the Robert D. Olson family for granting the
Conservation Easement to the community. No signs shall materially adversely affect the
Conservation Values of the Property.
4. Rights Retained by Grantor. 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 sell or otherwise transfer the Property to anyone Grantor shall
choose.
5. 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.
b. Grantee's Approval. Where Grantee's approval is required, Grantee shall grant or
withhold its approval in writing within thirty (30) days of receipt of Grantor's written request
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 thirty (30) days shall be deemed approval by Grantee.
7. Responsibilities of Grantor and Grantee Not Affected. The parties agree to the
following responsibilities:
A. Taxes. Grantor shall continue to be solely responsible for payment of all
taxes and assessments before delinquency levied against the Property by competent authority
(collectively "taxes"). If Grantee is 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. Grantee, not Grantor, shall be solely responsible
for the upkeep and maintenance of the Property, to the extent it may be required by law, including
but not limited to the control of noxious weeds. Grantor shall have no obligation for the upkeep or
7
maintenance of the Property. Moreover, it shall be the Grantee's obligation to prevent trespass,
"squatters" and public camping on the Property. Grantor shall enforce the covenants and
restrictions contained in Section three (3) above. Grantee shall be responsible for compliance with
any hazard mitigation associated with installation of non -motorized, recreational trails on the
Property.
C. Liability Insurance and Indemnification. Grantee shall obtain and pay for a
general liability insurance policy for the Property and include Grantor as an additional insured on
such insurance policy. Such general liability insurance policy shall have limits of at least one -
million dollars per occurrence and two million dollars aggregate. Grantee shall not be entitled to
"self -insure" for this obligation. Grantee shall provide certificates of such insurance to Grantor
upon reasonable request on an annual basis. To the extent any liability associated with the Property
is not covered and paid for by such liability insurance and to the extent permitted by law, Grantee
shall hold Grantor and its members, managers, officers, employees, attorneys, agents and affiliates
(collectively, the "Indemnified Grantor Parties" and each an "Indemnified Grantor Party")
harmless from and against the aggregate of all losses, obligations, liabilities, assessments,
judgments, damages, deficiencies, demands, claims, costs, penalties, fees and expenses of every
kind and nature whatsoever (including, without limitation, reasonable counsel and paralegal fees
and expenses) incurred or suffered by any Grantor Indemnified Party directly arising out of,
relating to, or resulting from all obligations and liabilities incurred by Grantor with respect to its
ownership of the Property, except for general real property taxes, after the Effective Date which
are asserted against Indemnified Grantor Parties (or any of them) and will fully indemnify them
for any payments, loss or other damages suffered, including reasonable costs and expenses in
defending the same, inclusive of reasonable attorneys' fees, court costs and costs of appeal in
connection with such liabilities and obligations of Grantor. The Grantee acknowledges that, since
it is the Grantee's obligation to maintain the Property and any and all improvements, such as trail
improvements, which may be constructed and maintained on the Property, the Grantee is the party
that would be responsible for any claim or damage that occurs on the Property and, as such, this
agreement to indemnify and hold harmless is not an agreement by the Grantee to "become
responsible for" a debt of a third party in violation of Article XI, Section 1 of the Colorado
Constitution.
8. 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, 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,
8
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.
9. Access. No right of access to the general public to any portion of the Property is
conveyed by this Deed nor shall such a right ever be construed to have been conveyed by this
Deed, except in the event that Grantee may hereafter install a non -motorized, recreational trail for
access across the Property.
10. 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, delayed or conditioned) Grantee 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), 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 of this Deed will 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, but Grantor
refuses to approve the transfer, a court with jurisdiction shall transfer this Deed to another
Qualified Organization that is not a governmental organization and that agrees to assume the
responsibility of enforcing this Deed, provided that Grantor receives notice of and an opportunity
to participate in the court proceeding.
B. Transfer by Judicial Process. If the Grantee ever ceases to exist or 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.
11. Transfer of the Property. Grantor shall notify Grantee in writing at least one week
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. Failure to provide
9
notice pursuant to this paragraph or such recorded document shall not invalidate any transfer of
the Property.
12 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), IRC, or any regulations
promulgated thereunder. Any such amendment shall also be consistent with Colorado Revised
Statutes §38-30.5-10I, et seq., or any regulations promulgated thereunder, and shall not affect the
perpetual duration of this Deed.
13. Real Property Interest. Grantor and Grantees stipulate that as of the date of this
Easement, they are each vested with a real property interest in the Property. The Parties further
stipulate that the Grantee's interest in the Easement has a value that shall be determined by a
qualified conservation easement real estate appraisal at the time of extinguishment, condemnation,
or any other event terminating part or all of the Easement on the property, should any such event
occur in the future. This value shall be represented as a percentage of the fair market value of the
Property that is at least equal to the proportionate value that the Easement bears to the value of the
Property as a whole at the time of the Easement's grant, which percentage shall remain constant in
relation to any future fair market value of the Property (the "Easement Value Percentage"). Such
percentage shall be used for determining the Grantees' proportion of proceeds from any payment
of damages or action resulting from circumstances described in the Extinguishment and
Condemnation paragraphs below and including other events of partial or complete termination of
the Easement. The Grantees' right to proceeds and the rights shall survive any termination of the
Easement.
14. Condemnation or Other Extinguishment. If the Property is taken, in whole or in
part, by exercise of the power of eminent domain ("Condemnation"), or if circumstances arise in
the future that render the purpose of this Deed 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
teams of such circumstances. Grantees shall be entitled to full compensation for its interest in any
portion of this Deed that is terminated as a result of Condemnation or other proceedings. Grantees'
proceeds shall be an amount at least equal to the Easement Value Percentage multiplied by the
value of the unencumbered fee simple interest in the portion of the Property that will no longer be
encumbered by this Deed as a result of Condemnation or termination. Grantor shall not voluntarily
accept proceeds equal to less than the full fair market value of the affected Property unrestricted
by this Deed without the approval of Grantees.
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
10
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: R.D. Olson Investments II, LLC
520 Newport Center Drive, Ste. 600,
Newport Beach, CA 92660
To Grantee:
County Manager
530 East Main St.
Aspen, CO 81611
With copy to:
County Attorney's Office
530 East Main St.
Aspen, CO 81611
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 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 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 the Property as collateral for subsequent borrowing,
provided that any mortgage or lien arising from such a borrowing shall be subordinate to this Deed.
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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's 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
one week prior to the date of such transfer. The failure of Grantor to perform any act required by
this paragraph shall not impair the validity of this Deed or limit its enforceability in any way; and
failure of Grantor to provide notice pursuant to this paragraph shall not invalidate any transfer of
the Property.
24. Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Deed 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 Deed 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.
2f Entire Agreement. This Deed 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.
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
12
interpretation.
31. Third Party Beneficiaries. This Deed is entered into by and between Grantor and
Grantee and does not benefit or 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 acknowledges 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 Deed, 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 to Grantor;
and the Grantee shall be solely responsible for compliance with applicable laws in regard to the
exercise of rights reserved herein to Grantee. Nothing contained in this Deed is intended to
represent a permit or land use approval by the City or Pitkin County.
TO HAVE AND TO HOLD, this Deed unto Grantee, its successors and assigns, forever.
IN WITNESS WHEREOF, Grantor and Grantee, intending to legally bind themselves,
have set their hands on the date first written above.
SIGNATURE PAGES FOLLOW
13
STATE OF COLORADO
) ss.
COUNTY OF PITKIN
GRANTOR:
R.D. OLSON INVESTMENTS II, LLC, a California
limited liability company
/44Z4427k,
By:
Robert D. Olson, Managing Member
The foregoing instrument was acknowledged before me this ? day of December 2023
by Robert D. Olson, managing member of R.D. Olson Investments II, LLC, a California limited
liability company.
WITNESS my hand and official seal.
My commission expires: 7.22'XQX
ALICIA MICHELLE SMITH
NOTARY PUBLIC - STATE OF COLORADO
NOTARY ID 19964018703
MY COMMISSION EXPIRES JUL 29, 2026
Notary Public
14
ATTEST:
Jea = Ite Jones
De.uty Clerk and R-corder
APPR XI :D AS TO FORM:
GRANTEE:
BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
ouv►{. ,:psia , Chair
DATE: 7.f.
MANAGER APPROVAL:
J hi] Ely Rit,i,v6 , iC� QT- Jon Peacock
County Attorney l County Manager
RECOMJA DED FOR APPROVAL:
daft
11. I
Pitkin County Open Space and rails
STATE OF COLORADO
COUNTY OF PITKIN
1640-4 Y. Adt-L. r
) ss.
The foregoing instrument was acknowledged before me this play of 1.4.(A,44-i,12r-y ;
2021, by 'ounty, Colorado.
Frain `lL 3a.(,a , 041Yee'Ybern PCOU.A41,Cot0— .
WITNESS my hand and official seal.
My commission expires: 0-14 l'"'?"(e
Richard Young NoU y Ili
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20174026081
MY COION EXPIRES February 4. 2026
15
EXHIBIT A
LOTS 19 AND 21, LYING AND BEING SITUATED IN SECTION 12, TOWNSHIP• 10
SOUTH, RANGE 85 WEST OF THE 6TH PRINCIPAL MERIDIAN, PITKIN COUN'TY,
COLORAOO, AS SHOWN ON THE BUREAU OF LAND MANAGEMENT PLAT OF THE
DEPENDENT RESURVEY AND SURVEY FOR TOWNSHIP 10 SOUTH, RANGE 85 WEST
OF THE SIXTH PRINCIPAL MERIDIAN, COLORAOO, APPROVED FEBRUARY 14,
1980, AND RECORDED DECEMBER 8, 1986, IN PITKIN COUN'TY RECORDS IN BOOK
524 AT PAGE 552; and
LOT 34, LYING AND BEING SITUATED IN SECTION 13, TOWNSHIP 10 SOUTH,
RANGE 85 WEST OF THE 6TH PRINCIPAL MERIDIAN, PITKIN COUNTY, COLORADO,
AS SHOWN ON THE BUREAU OF LAND MANAGEMENT PLAT OF THE DEPENDENT
RESURVEY AND SURVEY FOR TOWNSHIP 10 SOUTH, RANGE 85 WEST OF THE
SIXTH PRINCIPAL MERIDIAN, COLORADO, APPROVED FEBRUARY 14, 1980, AND
RECORDED DECEMBER 8, 1986, IN PITKIN COUNTY RECORDS IN BOOK 524 AT
PAGE 552; and
EXTRA LODE MINING CLAIM, U.S.M.S. NO. 4712, EMBRACING A PORTION OF
TOWNSHIP 10 SOUTH, RANGE 85 WEST, OF THE SIXTH PRINCIPAL MERIDIAN
LOCATED IN THE ROARING FORK MINING DISTRICT; and
ALL THAT PORTION OF THE COPPEROPOUS LODE MINING CLAIM, U.S.M.S, NO.
1759 WHICH LIES WEST OF THE WEST SIDE LINE OF THE PRIDE OF ASPEN LODE
MINING CLAIM, U.S.M.S. NO. 7364, BETWEEN CORNERS NO. 3 AND 4 OF THE PRIDE
OF ASPEN LODE. LOCATED IN THE ROARING FORK MINING DISTRICT; and
PRIDE OF ASPEN LODE MINING CLAIM U.S.M.S. NO. 7364, LOCATED IN THE ROARING FORK
MINING DISTRICT.
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