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HomeMy WebLinkAboutbocc.con.266.23 - BOCCRecording requested by and return to City of Aspen Parks & Recreation Department 130 South Galena Aspen, Colorado 81611 1111111INIMINIIIINE11111311111111111 RECEPTION#: 699492, R: $0.00, D: $0.00 DOC CODE: DEED CONSERV Pg 1 of 18, 12121/2023 at 02:01:20 PM Ingrid K. Grunter, Pitkin County, CO DEED OF CONSERVATION EASEMENT PRIDE OF ASPEN THIS DEED OF CONSERVATION EASEMENT ("Deed") is granted effective as of the -4 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 approximately 19.329 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: 1 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-I4(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-I 4(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 2 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 3 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 4 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. 5 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 Iater 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 § 203 1(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 6 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. 6. 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 §38-30.5-101, 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 learns 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 parry'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 I1, 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. 11 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. 26. 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 Iaws 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 61102/2, 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: -72/'/"� ALICIA MICHELLE SMITH NOTARY PUBLIC - STATE OF COLORADO NOTARY ID 19964018703 MY COMMISSION EXPIRES JUL 29, 2026 14 ATTEST: Jea tte Jones De • uty Clerk and R - corder APPROVED AS TO FORM: --khrrEly R4V I�l� j County Attorney RECOM APPROVAL: GRANTEE: BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO DATE: MANAGER APPROVAL: Jon Peacock County Manager 410- Y. P 4t- fJr Pitkin County Open Space and Trails STATE OF COLORADO ) ss. COUNTY OF PITKIN , Chair The foregoing instrument was acknowledged before me this aithelay of ; 2023_, by ty C ,ur[ty Clark ofPirkin County, Colorado. /J Fv'w NL , c1 i,(,o(0°-rid+lr 'bore► tWk-kl'v\.. ( , GUIIr4o WITNESS my hand and official seal. 1 My commission expires: a`/ 194).9-4€ Richard Young NQIIoy III . NOTARY PUBLIC _ STATE OF COLORADO NOTARY ID 20174028581 MY COON EXPIRES FebnFay 4. 2028 Notary Pu 15 STATE OF LORADO COUNTY OF PITK The foregoing instru 202 , by , as Colorado. nt was acknowled before me this day of , air of the F and of County Commissioners of Pitkin County, WITNESS my hand and o My commission ex List of Exhibits A Property legal description B Map of the Property Notary Public 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. 2 au "flgis t 4441 ; 7i� a m,. FT MO ggs .sr-\ 0 S t II 1., am I 3