HomeMy WebLinkAboutbocc.con.164.2003APPROVED BY BOCC
ON
APPROVED BY
ORDINANCE
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SILVIA DAVIS PlTKIN COUNTY CO R 81.00 D 0,00
CONTRACT # 3
DEED OF CONSERVATION EASEMENT
TillS DEED OF CONSERVATION EASEMENT (the "Conservation
Easement") is made and entered into this.~ day or ~:i'~,-', 2003 between Dr. Bernarr B.
Johnson and Dorothy O. Johnson (collectively, "Grantor") and the Board o£ County
Com~missioners of?itkin County, Colorado, a body corporate and politic (the "Grantee").
RECITALS
WHEREAS, Grantor is the record owner of that certain real property in Pitkin
County, Colorado, consisting of 61.3 acres along the Crystal River, and
WHEREAS, Pitkin County has entered into a contract to purchase much of the
property lying east of the Crystal River and desires to protect the scenic and habitat values
of this land and therefore grantor has part of said contract has agreed to place a
conservation easement on grantor's retained lands east of the Crystal River encompassing
the existing greenhouse and bridge east of the fiver as depicted on Exhibit A (the
Property), and
WHEREAS, the Property contains important wildlife habitat including unique
wetlands hosting fireflies otherwise rare in Colorado, and open space, scenic, and
ecological features and values important to the Grantor, the residents of Pitkin County,
Colorado, and the people of the State of Colorado (the "Conservation Values"); and
WHEREAS, preservation of wildlife habitat, open space and agricultural
operations conforms with Policies 2-120 (Scenic Quality), 2-160 (Wildlife Management)
and 2-240 (Compatibility with Agricultural Lands and Operations) of the Pitkin County
Land Use Code; and 2-250 (Compatibility with Historical and Archaeological
Resources).
WHEREAS, preservation of these natural features and values will yield
substantial public benefit; and
WHEREAS, the Property, consisting of approximately 2.546 acres contains a
greenhouse/tool shop and other~vise remains in a largely undisturbed and natural state to
be documented in an inventory of the land's Conservation Values to be prepared as soon
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S~LVIA DAVZ$ PZTK~N COUNTY CO E a~,.O~ D
as weather and conditions permit following the conveyance of this Deed, which inventory
will be kept on file at the offices of the Grantee; and
WHEREAS, Grantor desires and intends to enhance, preserve and maintain the
ecologic health, the wildlife habitat, open space character, agricultural operations and
scenic and historic qualities and values within and upon the Property with a Conservation
Easement for the use and benefit of Grantee, pursuant to the provisions of Section 38-
30.5-101, e_t se_~q., Colorado Revised S~atutes, which provides [br maintenance of these
values hy the continuation of land use patterns, including, without limitation, those
relating to wetlands and passive recreational uses which do not significantly hnpair or
interfere with those values; and
WUEREAS, Grantee is a "qualilied conservation organization" as defined by the
Internal Revenue Code; and
WHEREAS, Grantor, as owner of The Property, owns the affirmative rights to
identify, preserve and protect in perpetuity its open space character and its significant
relatively natural features and values and further intends, as owner of The Property, to
convey to Grantee the fight to preserve and protect the Conservation Values of approx.
2.546 acres of The Property in perpetuity; and
WHEREAS, by acceptance of this Conservation Easement, Grantee
acknowledges its commitment to honor the intentions of Grantor as expressed herein to
preserve and protect in perpetuity the Conservation Values of The Property for the benefit
of this and future generations;
CONVEYANCE
NOW, THEREFORE, for and in consideration of the facts recited above, the
purchase contract, and of the mutual covenants contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby confessed and
acknowledged, Grantor hereby grants and conveys to Grantee, and its assigns, a perpetual,
irrevocable, conservation easement in gross, pursuant to Section 38-30~5-101, et seq.,
Colorado Revised Statutes (the "Conservation Easement"), over, across and upon the
approx. 2.546 acres of The Property as legally described on Exhibit "A", subject to the
terms and conditions hereinafter set forth. Grantee hereby acknowledges, accepts without
reservation and agrees 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, scenic, historic, open
space, agricultural and aesthetic features and values of The Property, and in particular, the
Property. In furtherance of the foregoing objective, this Conservation Easement is
intended to establish permitted uses of the Property, which are consistent with the
purposes of the Conservation Easement, and to restrict the level of development and
human activity on the Property in perpetuity.
2. Grantee's Affirmative Rights.- To accomplish the purposes of this
Conservation Easement, the following affirmative figbts are hereby granted to Grantee:
(A) To identify, preserve and protect in perpetuity, and in the event of their
degradation or destruction, to cgmpel and assist in the ~'estoration of, the
natural, ecological; wildlife, open space, historic and scenic features and
values o£ the Property. In the event such restoration is required, the
standard o£ such restoration shall be to restore, to the greatest extent
possible, the features to' the same condition in which they existed, as
documented in the baseline report, prior to their degradation or
destruction.
(B) To enter upon The Property as necessary to exercise the fights herein
granted and to enforce the terms hereof and at a minimum, on an annual
basis to monitor the terms of this Conservation Easement. Grantee shall
provide Grantor at least 24 hours advance notice prior to each visit to The
Property by Grantee. Grantee's activities hereunder shall not unreasonably
interfere with the uses being made of The Property, consistent with this
Conservation Easement, at the time of such entry. The Grantee shall also
have the right of immediate entry to the Property, if, in its sole judgment,
such entry is necessary to prevent damage to or the destruction of the
Conservation Values protected by this Conservation Easement.
(C) To enjoin any activity on, or use of, The Property which is inconsistent
with the terms and intent of this Conservation Easement and to enforce
and compel the restoration of such areas or features of the Property as may
be damaged by such activities, as set forth in paragraph 20 of this
document.
(D) To perform activities for enhancement of the Property, or measures
~vhich would enhance the habitat, stream, wetlands or riparian viability or
other natural features of the Property such as noxious weed and thistle
control and/or stream erosion and to enter upon the property with Grantor's
permission to perform such restoration at its own expense at times which
will not unreasonably interfere ~vith the uses being made of The Property.
3. Easement Documentation. A collection of baseline data on the Property and
its resources (the "Baseline Documentation") shall be prepared 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 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 o£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.
4. Consistent Uses. The following uses and practices, though not an exhaustive
recital of consistent uses and practices, are consistent with this Conservation Easement
when carded out in the Property, and these uses and practices shall in no way be
precluded by this Conservation Easement, to wit:
(A) The installation, repair and maintenance of water wells, irrigation systems
pipes, heat exchangers and improvements related to the use of geothermal
water rights appurtenant to the Property and other adjacent property owned
by the Grantor.
(B) The repair and maintenance the existing greenhouse/tool shop
provided that such repair and maintenance cannot expand the size of this
structure or materially alter its appearance without the express written
consent of the Grantee. Grantor acknowledges that the appearance of the
greenhouse at the time of this grant is rustic in nature and compatible with
the scenic values of the adjacent lands owned by the Grantee and that no
modification of the greenhouse that is not consistent with these scenic
qualities will be allowed.
(C) The repair and maintenance and replacement of the existing bridge.
Grantee holds an access easement across said bridge and has joint
maintenance responsibilities as provided in Exhibit B to the Deed recorded
at Book 368, page 733 of the Official Records of Pitkin County. As
provided in the Contract between Grantor and Grantee dated June 4, 2002,
Grantee's obligation to assist in the maintenance of the bridge will cease
upon Grantee's extinguishment of said access easement.
(D) The taking of such reasonable steps as is necessary to control erosion
to prevent sedimentation of streams or ponds on The Property.
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SILVIA DAVIS PITKIN COUNTY CO R 81.00 O 0100
(E) The installation, repair and maintenance of boundary fencing
consistent in height and type of construction with Colorado Division of
Wildlife standards designed to prevent interference with wildlife. Grantee
agrees to utilize existing nearby fencing to create a boundary fence within
one year of the grant of this easement. Thereafter, the maintenance of
said fence and gates shall be the responsibility of the Grantor.
(F) Such cutting and removal of dead, dying or diseased timber or brush as
may be reasonably necessary for tire protection or disease prevention
purposes, however, Grantor is encouraged to leave standing dead timber
for habitat purposes to the extent such dead timber does not pose a danger.
Except in emergency cimumstances, Grantor shall obtain the prior consent
of Grantee for any substantial level of such activity, which consent will not
be unreasonably withheld.
(G) Passive, non-motorized (except as provided herein) uses, including
hiking, horseback riding, fishing and cross-country skiing all in
accordance with standards intended to assure non-interference with the
critical wildlife, riparian, wetland and fiver habitat.
(0 Performance of any restoration or improvement measures for the
habitat or natural features of the Property as recommended and/or
approved by Grantee.
5. Prohibited Uses. The following uses and practices by Grantor, though
not an exhaustive recital of inconsistent uses and practices, are inconsistent with
the purposes of this Conservation Easement and shall be prohibited:
(A) The material change, disturbance, alteration or impairment of the
natural, ecological, historic, wildlife, open space or scenic features or
values of the Property, except as otherwise permitted in this Conservation
Easement. The filling in or other destruction of the wetlands upon the
Property is hereby declared to be inconsistent with the terms Of this
Conservation Easement.
(B) Residential use of the Property or the Development of any new
Structures or roads on the Property (as such terms are defined in the
current version of the Pitkin County Land Use Code, attached hereto as
Exhibit "C"). This prohibition does not apply to roads and Structures
existing on the date the easement is conveyed, as documented on Exhibit
A and the Baseline inventory. The prohibition set forth in this
subparagraph shall continue even if the Pitkin County Land Use Code is
revised to amend or eliminate such definitions or if The Property, or any
portion of The Property, is annexed into a municipality which does not
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adopt the same definitions of "Development" and "Structure" as exists in
the Pitkin County Land Use Code.
(C) The removal, destruction, spraying or cutting of native vegetation or
timber, except as permitted in this Conservation Easement.
(D) The introduction of non-native plant or animal species to the Property,
except within the greenhouse. -
(E) The exploration for or extraction of minerals, oil, gas, or other
bydrocarbons, soils, sands, gravel, or other materials (but not including
water, or simple, manual gold panning) on or below the surface of The
Property.
(F) The dumping or other disposal of refuse, garbage, or other unsightly,
hazardous or offensive material, but excluding proper composting_.
(G) The commercial or recreational use of any motorized vehicles except
for the occasional use as may be necessary in conjunction with farming
and ranching, or land management consistent with the permitted uses or
emergency vehicles.
(H) The operation of a commercial feed lot.
(I) The transfer of development rights that were, are or may be appurtenant
to the Property. The parties hereto acknowledge and agree that all
development rights appurtenant to the Property are forever extinguished by
virtue of the grant of this Conservation Easement, with the exception of
any rights remaining under the terms of Pitkin County Resolutions 84-74
and 91-107.
(J) Subdivision of any portion of The Property.
6. Grantee Approval of Unlisted but Consistent Uses and Practices;
Notice. In the event Grantor wishes to engage in a use or practice on the
Property which is not listed above as a "Consistent Use" or as a "Prohibited Use",
Grantor shall send Grantee written notice of Grantor's intention to commence or
undertake such activity, which notice shall describe all material aspects of the
proposed activity. Said notice (and any other notice required or permitted
hereunder) shall be sent by registered or certified mail, return receipt requested, to
the following address or to such other address as Grantor may from time to time
be informed of in writing by Grantee:
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$ILVIA DAVIS PITKIN COUNTY CO R ~,00 D 0.00
Pitkin County Open Space and Trails Board
and Pitkin County Attorney
530 East Main Street
Third Floor
Aspen, Colorado 81611
Grantee shall have thirty (30) days from the receipt of such notice, as indicated by
the registered or certified return receipt,.to review the proposed activity and to notify
Grantor of its objections thereto. Such objections, if any, shall be based upon Grantee's
considered opinion that tlie proposed activity is inconsistent with this Conservation
Easement. If at all possible, said notice shall inform Grantor of the manner in which the
proposed activity cat] be modified to be consistent with this Conservation Easement.
Grantee's response to Grantor's notice, and any other notice that may be required
or permitted of Grantee hereunder, shall be sent by registered or certified mail, return
receipt requested, to Grantor at the following address, or to such other address as Grantee
from time to time may be informed of in writing by Grantor:
Bernarr Johnson
C/O The Property
14628 Highway 133
Carbondale, CO 81623
Should Grantee fail to post its response to Grantor's notice within thirty (30) days
of the posting of said notice, the proposed activity shall automatically be deemed
consistent with the terms of this Conservation Easement, and Grantee shall have no
further right to object to the activity identifie, d by such notice.
Grantor shall be under no liability or obligation for any failure in the giving of
notice as required above with regard to any activity undertaken by Grantor necessitated by
virtue of fire, flood, act of God, or other element or cause beyond the control of Grantor.
In the event Grantor and Grantee disagree as to whether a particular use or
practice is a "Consistent Use" or a "Prohibited Use", as defined herein, or if Grafitor
disagrees with a determination by Grantee that a proposed activity is inconsistent with
this Conservation Easement, either Grantor or Grantee may submit the dispute to such
form of mediation, arbitration, or conflict resolution as may be mutually acceptable to
Grantor and Grantee. In the event of arbitration, the parties agree that the decision of the
arbitrator(s) shall be final and binding upon the parties, and that the non-prevailing party
shall bear the cost of the conflict resolution procedure. However, each party shall pay its
own attorney's fees, if any, regardless of outcome.
7. Costs and Liabilities. Grantor, Grant0r's heirs, successors,
representatives and assigns, retain all responsibilities and shall bear all costs and
liabilities of any kind related to the ownership, operation, upkeep, and maintenance of
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The Property, and in particular, the Property, including the maintenance of adequate
comprehensive general liability insurance coverage. Grantor shall add Grantee as an
additional insured to such insurance coverage, and shall deliver proof of such coverage to
Grantee at closing: Grantor shall keep The Property free of any liens arising out of any
work performed l'or, materials furnished to, or obligations incurred by Grantor.
8. Taxes and Assessments. Grantor understands that nothing in this
Conservation Easement relieves Grantor of any obligation or restriction imposed by law
with respect to The Property, including the obligation to pay such real estate taxes as may
be assessed from time to time on The Property or on this Conservation Easement.
Grantor agrees to pay before delinquency any and all real property taxes, fees,
assessments and charges of whatever description assessed or levied on The Property,
including any tax or assessment on the Conservation Easement granted by this document,
and does indemnify thc Grantee therefore. Grantor shall furnish Grantee with satisfactory
evidence of payment, upon request. Should Grantor, Grantor's heirs, successors or
assigns, fail to pay any such real property taxes, charges, fees or assessments on The
Property, Grantee may, at its sole discretion and without obligation, pay such taxes, fees,
charges or assessments in accordance with any bill, statement or estimate procured from
the appropriate authority, without inquiry into the validity of the taxes or the accuracy of
the bill, statement or estimate, and the obligation created by such payment shall bear
interest until paid by Grantor to Grantee at the rate of two (2) percentage points over the
prime rate of interest from time to time charged by Norwest Bank of Danver or the
maximum rate allowed by law.
9. Residual Estate. As expressly provided in Section 38-30.5-105 of the
Colorado Revised Statutes, all interests and rights of ownership not transferred and
conveyed to Grantee by this Conservation Easement shall remain in Grantor, including
the right to engage in all uses of The Property which are not inconsistent with the
Conservation Easement or prohibited by the Conservation Easement or by law.
lO...Subsequent Sale, Exchange. Condemnation or Involuntary Conversio,,.
Grantor and Grantee agree that the granting of this Easement immediately vests the
Grantee with a property right, mad the fair market value of this property right as compared
to the fair market value of the entire The Property is impossible to calculate at present
without benefit of an appraisal of the value of the Conservation Easement relative to the
value of The Property as a whole. Them fore, the parties hereto agree that in the event of
a request to extinguish this Conservation Easement, the initiation of an involuntary
conversion or condemnation action, or any other action which results in the temfination
of all or a portion of the Conservation Easement on the Subject Tract, Grantor and
Grantee shall conunission and jointly pay for the cost of an appraisal which shall
determine the value of The Property encumbered by the Conservation Easement and the
value of The Property unencumbered by the Conservation Easement (appraised at the
property's highest and best use as unencumbered). The difference between these two
numbers shall represent the ratio of ownership interest owned in The Property by Grantor
and Grantee.
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$ILV[A DAVIS pTTKIN COUNTY CO R 81.00 D 0,00
Grantor and Grantee further agree that the above ratio shall remain constant, so
that should this Conservation Easement be extinguished by a change in conditions, or for
any other reason, the Grantee shall be entitled to a portion of the proceeds from any
subsequent sale, exchange or involuntary conversion; provided, however, if Grantee's
actions are the cause of the extinguishment, the provisions of this paragraph shall not
apply. The Grantee may be compensated for the value of this property right only in the
event of a change in conditions resulting in the extinguishment of the Conservation
Easement (as provided in Treas. Reg. Section 1.170A-14(g)(6)(i)). Grantee shall apply its
share of the proceeds in a manner consistent with the conservation purposes of the
Conservation Easement or for the protection of a "relatively natural habitat of fish,
wildlife, or plants or similar ecosystem" as that phrase is used in the Internal Revenue
Code. If the Conservation Easement is taken, in whole or in part, by exercise of the
power of eminent domain, Grantee shall be entitled to compensation in accordance with
applicable law in an amount as determined by the values established by this paragraph if
the Grantee has been consistent in activities as listed in 2D during the life of thT..
Conservation Easement.
11. Subsequent Transfers. Grantor agrees to incorporate the terms of this
Conservation Easement 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, a leasehold
interest. Grantor further agrees to give Grantee written notice of the transfer of any
interest at least twenty (20) days prior to the date of such transfer, including the
transferee's name, address and telephone number. The failure of Grantor to perform any
act required by this paragraph shall not impair the validity of this Conservation Easement
or limit its enforceability in any way.
Any time the Property itself, or any interest in it, is transferred by the Grantor to
any third party, the Grantor shall notify the Grantee in writing prior to the transfer of the
Property, and the document of conveyance shall expressly refer to this Deed of
Conservation Easement. In addition, Grantor, its successors and assigns, shall pay
Grantee a One Hundred Dollar ($100.00) transfer fee at the closing of a sale of all or any
portion of the Property or in the event any interest in the Property is leased. The
obligation to make such payment runs with the land and is binding upon the Grantor, its
successors and assigns.
12. Grantor Obligations to Defend, Hold Harmless and Insure. Grantor shall
hold harmless, indemnify and defend Grantee, volunteer citizen board members, employees,
agents and the heirs, personal representatives, successors, and assigns of each of them
(collectively "Indemnified Parties") from and against all liabilities, penalties, costs, losses,
damages, expenses, causes of action, claims, demands or judgments, including, without
limitation, reasonable attorneys' fees, arising from or in any way connected with: (1) injury
to or the death or any person, or physical damage to any property, resulting from any act,
omission, condition, or other matter related to or occurring on or about The Property,
R 8~- 00 D 0 00
regardless of cause, unless due solely or in part to the negligence of any of the Indemnified
Parties; (2) the presence or release of hazardous or toxic substances on, under or about The
Property, unless such release was caused by an Indemnified Party. For the purpose of this
paragraph, hazardous or toxic substances shall mean an~( hazardous or toxic substance
which is regulated under any federal, state or local law_.
Nothing in this Conservation Easement shall be construed as giving rise to any
right or ability of the Grantee to exemise physical or managerial control of the day to day
operations of The Property, or of any of the Grantors activities on the Property, or
otherwise become an operator with respect to the Property within the meaning of the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as
amended, or any other federal, state, or local law or regulation making operators of
property responsible for remediation of contamination. Grantor acknowledges that
neither shall this Conservation Easement make the Grantee an owner or responsible party
in regard to The Property pursuant to such laws.
13. Amendment. The fact that any use of The Property that is expressly
prohibited by this Conservation Easement, or any other use as determined to be
inconsistent with the purpose of this Easement may become greatly more economically
valuable than consistent uses allowed by this Conservation Easement, or that neighboring
properties may in the future be put entirely to uses that are not permitted hereunder, has
been considered by the Grantor in granting this Conservation Easement. It is Grantor's
belief that any such changes ~vill increase the benefit to the public of the continuation of
this Conservation Easement, and it is the intent of both Grantor and Grantee that any such
changes should not be assumed to be circumstances justifying the termination,
extinguishment or automatic amendment of this Conservation Easement. In addition, the
inability to carry on any or all of the Consistent Uses, or the unProfitability of doing so,
shall not impair the validity of this Conservation Easement or be considered grounds for
its termination, extinguishment or automatic amendment.
Notwithstanding the foregoing, however, Grantor and Grantee recognize that
circumstances may arise under which an amendment to or modification of this
Conservation Easement would be appropriate. Accordingly, Grantor and Grantee may
.jointly amend this Conservation Easement, provided that no amendment shall be allowed
that will affect the qualification of this Conservation Easement under Section 38-30.5~
101, ~ seq., Cglorado Revised Statutes, nor its qualification as a conservation easement
for purposes of the Internal Revenue Code, and any amendment shall be consistent with
the conservation .purposes of this Conservation Easement, and shall not affect its
perpetual duration. Any such amendment shall be recorded in the official records of
Pitkin County, Colorado. Although this paragraph recognizes that an amendment to this
Conservation Easement may be appropriate in certain circumstances, the terms of this
paragraph do not create an obligation on the part of either Grantor or Grantee to agree to
an amendment requested by the other party.
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14. Extinguishment. If circumstances arise in the future that render the purpose
of this Easement impossible to accomplish, this Easement can only be terminated or
extinguished, whether with respect to all or part of The Property, by judicial proceeding
in a court of competent jurisdiction.
15. Enforcement and Waiver. Enforcement of the terms and provisions of this
ConservationEasement shall be at the discretion of Grantee. Any forbearance on behalf
of Grantee to exemise its rights hereunder ih the event of any breach by Grantor shall not
be deemed or construed to be a waiver of Grantee's rights hereunder in the event of any
subsequent breach. Grantor hereby waives any defense of laches, estoppel or
prescription.
16. Enforcement of Rights.
(A) In the event of a violation by Grantor or a third party of any term, condition,
covenant, or restriction contained in this Conservation Easement, Grantee shall give the
Grantor written notice of such violation, describing the violation and making demand that
the violation cease and be remedied. If, after ten (I0) days following receipt of such
notice (as indicated by the registered or certified mail return receipt), the violation has not
been corrected or the prohibited use terminated, and any damage to the Property remedied
and the Property restored, or steps taken to ensure the swift restoration of the property; or,
alternatively, if a written explanation to Grantee of the reason why the alleged violation
should be permitted is not delivered to Grantee within such ten (10) day period, the
Grantee may enjoin by temporary or permanent injunction such violation and/or institute
a suit for damages for breach of covenant, or may take such other action as it deems
necessary to insure compliance with the terms, conditions, covenants, and purposes of
this Conservation Easement; provided, however, that any failure to so act by the Grantee
shall not be deemed to be a waiver or a forfeiture of the right to enfome any term,
condition, covenant, or purpose of this Conservation Easement in the future. Should the
breach of this Conservation Easement be an impermissible conveyance of water rights in'
violation of paragraph 10 above, such conveyancd shall constitute a fraudulent land
transaction and shall be grounds for the Grantee to void the transfer or sale.
(B) Grantor further intends that should any Prohibited Use be undertaken on the
Property, the Grantee shall have the right to cause the restoration of that portion o£the
Property affected by such activii, y to the condition that existed prior to the undertaking of
such prohibited activity. In such case, the cost of such restoration shall be borne by
Grantor, Grantor's successors or assigns. Nothing contained herein shall be construed to
preclude Grantor from exhausting legal remedies in determining whether the proposed
activity to which the Grantee has objected is consistent ~vith this Conservation Easement.
(C) Any costs incurred by Grantee in enforcing the terms of this Conservation
Easement against Grantor, including, without limitation, costs of suit and reasonable
attorneys' fees (even in the event that the Grantee secures redress without a completed
judicial proceeding), and any costs of restoration necessitated by violation of the terms of
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SILVI~ DAVIS PITKIN COUNTY CO R 81.08 D 1~.00
this Conservation Easement, shall be repaid immediately to' Grantee by Grantor. If
Grantor prevails in any action to enforce the terms of this Conservation Easement, the
costs of suit, including, without limitation, reasonable attorneys' fees of Grantor, shall be
paid by Grantee.
(D) Nothing contained in this Conservation Easement shall be construed to entitle
Grantee to bring any action against Grantor for any injury to or change in the Property
resulting from causes beyond the control of Grantor, including, without limitation, fire,
flood, storm, and earth movement, or from any prudent or good faith action taken by
Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the
Property and/or The Property resulting from such causes.
(E) Notwithstanding any other provision hereof to the contrary, upon a transfer to
a third party of Grantor's interest in The Property, Grantor's rights and obligations under
this Conservation Easement shall automatically pass to said third party, and Grantor shall
have no further rights or responsibilities hereunder, except that liability for acts or
omissions occurring prior to transfer shall survive transfer.
17. Assignment. With the consent of the Grantor. Grantee may assign this
Conservation Easement to any charitable organization exempt under Section 501 (c) (3) of
the Internal Revenue Code of 1954, as amended, which organization was created at least
two (2) years prior to receipt by it of the Conservation Easement, provided that (a) in the
judgment of Grantee, the assignee organization has the ability, experience, interest and
resources to carry out the conservation objectives expressed in this Conservation
Easement, and (b) the assignee organization agrees in writing to abide by and to carry out
the intentions of Grantor and Grantee as expressed in this Conservation Easement.
18. Binding Effect; Rule Against Perpetuities; Severabilit¥. This
Conservation Easement shall run with the title to The Property and shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns in perpetuity. If any term or provision of this
Conservation Easement would otherwise violate the rule against perpetuities or the rule
restricting restraints on alienation, such term or provision shall automatically expire and
be of no further force or effect, on the da,/before the expiration of ninety (90) ,/ears from
the date of this deed. If any provision of this Conservation Easement or the application
thereof to any person or circumstance is found to be invalid, the remainder of the
provisions hereof and the application of such provision to persons or circumstances other
than those to which it is found to be invalid, shall not be affected thereby.
19. Joint Obligation[ Successors. The obligations imposed by this Conservation
Easement upon the Grantor shall be joint and several. The covenants, terms, conditions,
and restrictions of this Conservation Easement 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 rnrming in perpetuity with the
title to The Property.
~ 81,00 D 0,00
20. Interpretation. The provisions of this Conservation Easement shall be
liberally construed to effectuate their purpose of preserving and protecting the
Conservation Values of the Property. No remedy or election given by any provision in
this Conservation Easement shall be deemed exclusive unless so indicated, but it shall,
wherever possible, be cumulative with all other remedies at law or in equity. The parties
acknowledge that eac.h party and its counsel have reviewed and revised this Conservation
Easement and that no rule of construction that ambiguities are to be resolved against the
drafting party shall be employed in the interpretation of this Conservation Easement. In
the event of any conflict between the provisions of this Conservation Easement and the
provisions of any use and zoning restrictions of the State of Colorado, Pitkin County or
any other governmental entity with jurisdiction, the more restrictive provisions shall
apply. This Easement shall be interpreted in accordance with the laws of the State of'
Colorado.
IN WITNESS WHEREOF, Grantor and Grantee have executed this
Conservation Easement as of the day and year first above written.
ATTEST:
~anette Jones //
,'~eputy Clerk an~ Recorder
STATE OF ('OLoKP~O
COUNTY OF
By:
GRANTEE:
BOARD OF COUNTY COMMISSIONERS
OF PITKIN CO ,UNTY CQLORADO
,~ ,~ ~ ,". //~y/.. ·
r') ack Hatfield, ChfiilTnan
DATE:
, The foregoing instrument was acknowledged before me this ~. day of
~. 7~' '~t..Qt'.h , 200'3 by ~r,.~_. [-~7,~'~e.{.-~ ~ene~ -~/~
~0~f).~ ...... ; - - . - .~.. , = ~. ~ ...... of The
~.'>" ~T~" a cmorano nm~tea p~nersh~p
5' ·
,: NOrg .
~es~ my hand ~d officml seal.
0~,f6%v Not~Pubhc~ ~ ~
APPROVED AS TO FORM:
John E I y_7.......
Co~ Attorney
MAI~AGER A~PROVAL._~2_
· ary ¢.~ith
County Manager
Dale L. Will, Director
Open Space and Trails
GRANTOR:
Page: 14 o¢ 18
03/05/2003
SlLVIA'DAVIS PITKIN COUNTY CO R 81,00 D 0.00
The foregoing instrument was acknowledged before me this-? d day of
t:~;(,'-~ , 20&3 by ~"r'?e,rl ~:~r. 9c~,.,.:~ .4 ,
Witness my hand and official seal.
My commission expires: ~!/, /aY
Notary Public
c:\homc\da le/filoas.dr5
EXHIBIT A
GREENHOUSE LAND CONSERVATION EASEMENT
A TRACT OF LAND BEIN?TS~ITUATED IN SECTION 4, TOWNSHIP 10 SOUTH,
RANGE 88 WEST OF TIlE 6 P.M. COUNTY OF PITKIN, STATE OF COLORADO,
AND BEING A PORTION OF THAT TRACT OF LAND SHOWN AS LOT 1 ON THE
SUBDIVISION PLAT AS RECORDED IN PLAT BOOK 7 AT PAGE 89 OF THE
RECORDS OF SAID COUNTY, SAID CONSERVATION EASEMENT
ENCUMBERiNG THE TRACT OF LAND BEiNG DESCRIBED BY METES AND
BOUNDS AS FOLLOWS:
BEGINNING AT A POINT ON THE NORTHERLY LINE OF SAD LOT 1 FROM
WHENCE THE NORTH ¼ CORNER OF SAD SECTION 4, A USGLO BRASS CAP
MONUMENT FOUND IN PLACE, BEARS N.88°52'28"E. 1079.78 FEET AND
N.23 °59'29"W. 1615.79 FEET; THENCE DEPARTING SAID NORTH LiNE
S.23°16'50"E. 273.01 FEET; THENCE S.73°13'05"W. 94.47 FEET; THENCE
S.31°13'14"W. 23.34 FEET; THENCE 02°11'22"W. 34.27 FEET; THENCE
N.89°30'23"W. 158.47 FEET; THENCE N.53 °23' 19"W. 165191 FEET; THENCE
N. 16°10'57"W. 234.30 FEET TO A POiNT WHICH iNTERSECTS THE EASTERLY
EXTENSION OF THE AFORESAID NORTH LiNE OF LOT 1; THENCE
N. 88°52'28"E. 352.45 FEET ALONG THE EXTENSION oF SAID NORTH LiNE
AND SAID NORTH LiNE TO THE POiNT OF BEGINNING.
SAID EASEMENT ENCUMBERING AN AREA OF 2.546 ACRES, MORE OR LESS.
IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII
EXHIBIT B
RESERVATIONS AND ADDITIONAL GRANTS
Right of FirSt Refusal to the Grantors. The Grantees
he~c~ grant to the Grantors, their h~irs and assigns,
the Right of First Refusal to repurchase the real
property conveyed hereby or any portion thereof, in the
event the Grantees receive a valid offer for said
property. The Grantees shall give the Grantors, their
heirs and assigns, not less than sixty (60) days prior
written notice of their intentions to sell and if ~he
Grantors elect to exercise the Riqht, they shall notify
the Grantees by certified ~al! within 30 days from
receipt of such notice of their intent to exercise such
Right upon the same terms and conditions.
Bridge and Easements.
{a} The bridge crossing the Crystal River and which ts
located in the Northwesterly part of the property is to
be the property of both Grantor and Grantees and is to
be used by them and their lnvitees to gain access to
their prope£ty on the easterly side of the crystal
River. Grantors and Grantees shall be equally respon-
sible for the maintenance of said bridge in its present
condition. If Grantees choose to enlarge or improve
the bridge, they may do so bus in such event Grantors
shall be under no obligation to contribute to the costs
of enlar~ing and lmprovinn the bridge or maintaining
any enlarged bridge.
(b) The Grantors reserve an ease.~ent from Colorado
State Highway 133 along the present roadway (or any
alternate roadway later constructed) across the bridge
and onto their remaining property.
¢c} The Grantors gran~ unto the Grantees an easement
along the extension of the roadway described in para-
graph (b) above through the Grantors remaining lands
over the present roadway and by the most Dract£cable
route to the former location o~ the old Crystal River
and San Juan Railroad right of way.
(d) The Grantors resez've to themselves, their heirs
and assigns, an easement or r~.ght of way to bury, belo~
plow depth, a four inch water pipeline from the cold
spring and piPeline which serves the Grantors' residence
to the right of way for Colorado State Highway 133 by
the most practicable route across the land~ herein
conveyed to the Grantees.
Namer Rights.
Grantors hereby convey to Grantees, sub,eot to the follo~-
lng conditiona~ the following:
(a) ~wenty (20} gallons per ~inute from the col~
spring and pipeline which serves the Grantors' residence
or 25t of the flme fro~ said spring, whichever is less.
{b) Rn undi~ided one-half of the water rights ad~udicated
to the ~ilkie Ditch.
(o~ ~lthin 10 years from this date, the Grantees plan
to build a health care facility 'on the conveyed proper:y
utilizing water from springs otiginatin~ on the saiG
property. If the Grantees are unable to obtain sufficient
AN ORDINANCE OF THE COUNTY COMMISSIONERS OF
PITKIN COUNTY, COLORADO,
APPROVING ACQUISITION OF FILOI-IA MEADOWS
ORDINANCE #./,~. ~0~,
RECITALS
The Pitkin County Open Space and Trails Board of Trustees is charged with the
responsibility of acquiring open space properties within Pitkin County, and;
The Pitkin County Open Space and Trails Board of Trustees has designated
certain types of properties as priority acquisitions, with scenic lands and habitat
lands as priorities.
The approximately 50-acre Filoha Meadows ( Property ) ~s possessed of
outstanding scenic and habitat values. It was once part of the Kelly Grange
Ranch which also included the Hot Springs Ranch which the County purchased
last year. If similarly acquired, Filoha Meadows would remerge with the Hot
Springs parcel and constitute a contiguous 185-acre meadow of superlative scenic
and habitat value.
The Johnson family currently owns a total of approximately 63 acres. The
County will acquire approximately 50 acres comprising all of the land east of the
Crystal River except for an approximately 2-acre piece surrounding an existing
greenhouse. This two-acre piece would be subject to a conservation easement and
would remain part of the Jolmsons' retained lands.
The Property is highly visible from the Highway 133 Scenic Byway and contains
critical winter range for big horn sheep and elk.
As part of the deal, the lohnsons'will complete a lotline adjustment with their
daughter, who lives on adjacent land on the south, the result of which will be
conveyance to the County of the former Crystal River Railroad Grade linking Hot
Springs Ranch to an existing County Easement through the Wild Rose
ubd~v~s~on, and on to Redstone. The Sellers do not wish this open to general
public access for three years following the closing date.
Open Space and Trails, on behalf of Pitldu County, was awarded a GOCO a grant
of up to $235,000 for this acquisition.
88/Z3/2e02 10: 34.1~
$~LVI~ DRViS PirTK~N COUNTY CO R ~.00 D ~,00
On June 12, 2002 the Open Space and Trails Board passed a resolution
recommending the expenditure of up to $800,000 for the acquisition o£ the
Property.
NOW THEREFORE, BE IT ORDAINED, by the Board of County Commissioners of Pitkin
County, Colorado as follows:
1. The Board approves an expenditure of up to $800,000, minus any amount awarded by
Great Outdoors Colorado, for the purchase of the approximately SO-acm Filoha
~ Meadows Property under terms substantially the same as provided in the Filoha
Meadows purchase con~ract dated June 4, 2002.
The Chair is authorized to execute a contract for the purchase of the property
following approval of the form by the County Attorney's office and Open Space
Director, and is authorized to execute such other documents, as may be necessary to
finalize this 'transaction following approval of the form of those documents by the
County Attorney's office and Open Space Director.
3. That adjustments be made to the year.2002 budget as follows:
OPE~E~PACE ANB TRAILS FUND
GOCO Grant Revenue
Filoha Meadows expenditures
Previous Revised
B~ud~et This Chan~e Proi Bud~ei
$ $ $ -
0 235,000 235,000
0 800,000 800,000
OPEN SPACE AND TRAILS FUND TOTAL
NET REVENUE (EXPENDITUREs) CHANGE
565,000 565,000
INTRODUCED, FIRST READ, AND SET FOR PUBLIC HEARING ON THE 12th
DAY OF JUNE, 2002.
NOTICE OF PUBLIC HEARING PUBLISHED IN THE WEEKEND EDITION
_OF THE ASPEN TIMES ON TIlE 15TIt DAY OF JUNE, 2002.
APPROVED AT SECOND READING AND PUBLIC HEARING ON THE 26th
DAY OF JUNE, 2002.
PUBLISHED AIrFER ADOPTION IN THE ..WEEKEND EDITION OF THE
ASPEN TIMES ON THE 6TH DAY OF JULY, 2002
ATTEST:
J3.~ 'j~nes
D~z~/uty Clerk
BOARD OF COUNTY
COMMISSIONERS
OF PITKIN COUNTY, COLORADO
P~tti Kay-Claimer
Chairperson
Bate: .,, ~-~/-~..-.-.-.-.-.-.-.-a~
APPROVED AS TO FORM:
~ohn Ely --
Open Space and Trails Program
Hilary Sj6/Jth
County Manager
471437
oa/23/2ee2 ~.g :34R
o e.ee
EXHIBIT A
Aproximately fifty acres of the property known as "Filoha Meadows" being part of the
E1/2SWI/4 lying on the east side of the Crystal River and part of the NI/2 lying on the
east side of the Crystal River, Section 4, Township 10 South, Range 88 West of the Sixth
P.M. Pitkin County Colorado, depicted more fully in yellow on Exhibit D hereof. The
exact leaga deseriptoin of the approximately fifty acre tract of land shall be set forth on
the survey to be prepared as provided in paragraph 5(a) of this contract
EXHIBIT B
Water Rights Conveyed to Pitkin County
All of the Seller's water rights for the Wilke Ditch, including an undivided one-half of
the water rights adjudicated to the Wilke Ditch, as referenced in the deed recorded at the
Pitkin County Clerk and Recorder's Office at Book 368 Page 73t.
471437
ea/23/:~ee;z ie:34R
o e.ee
EXHIBIT C
Water Rights Retained by the Seller
Twenty (20) gallons per minute or 25% of the flow from the cold springs pipeline that
serves the Grange (Hot Springs Ranch) residence and undivided 1/3 interest in and to the
Penny Hot Springs, together with a pipeline easement across the Hot Springs Ranch,
Pitldn County Clerk and Recirder's Office Book 368 Page 731 and Book 445 Page 276.
,088 cfs of the Johnson Cold Springs Ditch, appropriated March 21, 1979, per District
Court Ruling for Water Division 5 case number 79CW319.
1.5 acre feet of water with the appropriation date of August 11, 1986 for the Firefly pond,
per District Court Ruling for Water Division 5 case number 85CW597.
· I 1 cfs awarded to the Firefly well and the Elk well, per District Court Ruling for Water
Division 5 case number 90CW169.
Any other wator rights owned by the Seller that are not listed in Exhibit B.
SILVIR DRV[$ PITK:N COUNTY CO R ~.O~
471437