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HomeMy WebLinkAboutbocc.ord.007.2005AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO APPROVING THE ACQUISITION OF BROKER LODE MINING CLAIM, AND AUTHORIZING THE CHAIR TO EXECUTE THE NECESSARY DOCUMENTS ORDINANCE # 007 -2005 Recitals 1. The Open Space and Trails Program was created in 1990 for the purpose of preserving important wildlife habitat, scenic lands, and access to adjacent public lands. 2. Frank Goldsmith is the owner of the Broker Lode Mining Claim which is an inholding in the National Forest at Avalanche Creek comprised of approximately 10 acres. 3. Residential development of the Broker Lode would have serious negative impacts on Big Horn Sheep, which concentrate in lower Avalanche Creek during the critical winter period. 4. Mr. Goldsmith has agreed to sell the Broker Lode to the County, with a proviso that he will seek to certify a "constrained lot" Transferable Development Right ("TDR") and deliver said TDR into escrow at closing, so that any amount realized on the subsequent sale of the TDR will be applied to offset the County's acquisition cost. 5. On January 6, 2005, the Open Space and Trails Board formally moved to recommend this purchase, as detailed further below. NOW THEREFORE, BE IT ORDAINED, by the Board of County Commissioners of Pitkin County, Colorado as follows: 1. The Board approves the acquisition of the approximately 10 acre Broker Lode Mining Claim, and authorizes a payment from the Open Space Fund of up to $200,000 toward that purchase, and authorizes a further $5,000 for any related transaction costs. 2. The Chair is authorized to execute a contract for the purchase outlined in the recitals above, in a form approved by the County Attorney and Open Space Director. The Chair is further authorized to execute such other documents as may be necessary to finalize this transaction, in a form approved by the Open Space Director and County Attorney. {I 508170 I IIIIII VIII IIIIII VIII IIII IIIIII IIIIII III VIII IIII IIII Page: 03/23/2000010' 37P 0 / ordinance #W -Z-2005 Page 2 Adjustments are made to the year 2005 budget as follows: OPEN SPACE AND TRAILS FUND Previous Revised Budeet This ChanEe Proi Budeet $ $ S Broker Lc� Purchase 0 X00 000 X00 000 Transaction Costs 0 10.000 10 000 "Total 0 X41H --;4 fi(i .%%6,eoo-s%o,000 INTRODUCED, FIRST READ AND SET FOR PUBLIC HEARING ON THE 23rd DAY OF February 2005. NOTICE OF PUs� IC HEARING PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE 1�713AY OFh 2005. 4 APPROVED UPON SECOND READING AND PUBLIC HEARING ON THE f DAY OF MARCH 2005. PUBLISHED AFTER ADOPTION IN THE ASPEN TIMES WEEKLY ON THE _44, DAY OF M "0 I -F , 2005. ATTEST: BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO eat ette Jones, Deputy Patricia K. Clapp r, Chair County Manager: Approved as to Form: County Manager bale Will Open Space Director IE� 1E1 1111 I1 1111111E 111111III 11111110 5©8170 Page: 2 of 13 03/23/2005 10:37P 0 0.00 4,-)(141&7- 7o 09-:D/W41VCE 007- ZO06- The preprinted portions of this form, except italicized or differentiated additions, have been approved by the Colorado Real Estate Commission. (CBS3-9-99) THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES SHOULD CONSULT LEGAL AND TAX OR OTHER COUNSEL BEFORE SIGNING. CONTRACT TO BUY AND SELL REAL ESTATE (VACANT LAND — FARM — RANCH) Date: February 15, 2005 1. AGREEMENT. Buyer agrees to buy and the undersigned Seller agrees to sell the Property defined below on the terms and conditions set forth in this contract. 2. DEFINED TERMS. a. Buyer. Buyer, Board of County Commissioners of Pitkin County, will take title to the real property described below: Broker Mining Claim, USMS #6147, 10 acres, more or less, in Pe Cogn�yPf Pitkin, Colorado, t ether aVth the intens easements, rAts, bene ly, ��n rovaeinents �n attac e ixt�r ppuur��errll t t�i reto interest o Seller in vacate streets an a e�s a Iacent thereto, except as eh rem excluae�. b. Blank [Not Used] c. Dates and Deadlines. Item Refereni Event Date or Deadline Sa Loan Application Deadline 2 oan Commitment Deadline 3 § 5c Bu edit Information Deadline 4 § 5c Disapproval o s Credit Dead 5 § 5d Objection to Existing Lo me 6 § 5d Objection to E ' oan Deadline 7 § 5d A o Loan Transfer Deadline 8 § 6 raisal Deadline 7a Title Deadline 10 § 7a Survey Deadline N/A 11 § 7b 12 § 8a Title Objection Deadline N/A B3 § 8b Off -Record Matters Deadline February 23, 2005 14 § 8b I Off -Record Matters Objection Deadline March 9 2005 15 § 8 Seller's Property Disclosure Deadline February 23 2005 16 1 § 8a Inspection Objection Deadline after receipt of EA reporl 17 § 8b Resolution Deadline — Adverse Conditions TBD 18 § 9 Closing Date TBD 19 § 14 Possession Date 20 § 14 Possession Time 21 425 Acceptance Deadline Date 22 § 25 Acceptance Deadline Time 23 Add. § 6 County Approval of Contract Deadline Date 24 Add. § 5 Environmental Assessment TBD d. Attachments. The following exhibits, attachments and addenda are a part of this contract: 1 Addendum No. 1. 11111111111111111 illIIIIIIIII (IIII (IIII IIII IIII 508170 5 100 37P SILVIR DAVIS PITKIN COUNTY CO R 0.00 D 0.00 e. Applicability of Terms. A check or similar mark in a box means that such provision is applicable. The abbreviation "N/A" means not applicable. 3. INCLUSIONS AND EXCLUSIONS. a. The Purchase Price includes the following items (Inclusions): (1) Fixtures. If attached to the Property on the date of this contract, lighting, heating, plumbing, ventilating, and air conditioning fixtures, inside telephone wiring and connecting blocks/jacks, plants, mirrors, floor coverings, intercom systems, sprinkler systems and controls; and N/A (2) Other Inclusions. If on the Property whether attached or not on the date of this contract: storm windows, storm doors, window and porch shades, awnings, blinds, screens, window coverings, curtain rods drapery rods, storage sheds, and all keys. Check applicable box(es) if included: 0 Smoke/Fire Detectors, r] Security Systems; and N/A (3) Trade Fixtures. With respect to trade fixtures, Seller and Buyer agree as follows: N/A (4) Water Rights. The following legally described water rights: ALL WATER RIGHTS APPURTENANT TO THE PROPERTY (5) Growing Crops. With respect to the growing crops, Seller and Buyer agree as follows: N/A b. Instruments of Transfer. The Inclusions are to be conveyed at Closing free and clear of all taxes, liens and encumbrances, except as provided in § 11. Conveyance shall be by bill of sale or other applicable legal instrument(s). Any water rights shall be conveyed by N/A deed or other applicable legal instrument(s). c. Exclusions. The following attached fixtures are excluded from this sale: N/A 4. PURCHASE PRICE AND TERMS. The Purchase Price set forth below shall be payable in U. S. Dollars by Buyer as follows: Item No. Reference Item Amount Amount 1 2 § 4 § 4a Purchase Price Earnest Mone $200000.00 $ 25 000.00 3 § 4b New Loan 4 § 4c Assumption Balance 5 § 4d Seller or Private Financin 6 § 4e Cash at Closing $175000 . 00 7 TOTAL $ 200 000.00 $ 200,000.00 L4 VIIIA IIIIIII IIII III VIII VIII IIII IIII III 0 023/2005 8 5 of 13 20005 10'379 SILVI9 DAVIS PITKIN COUNTY CO R 0.00 0 0.00 a. Earnest Money. The Earnest Money set forth in this Section, in the form of, CHECK as part payment of the Purchase Price and shall be payable to and held by Pitkin County Title, Inc., in its trust account, on behalf of both Seller and Buyer. The parties authorize delivery of the Earnest Money deposit to the Closing Company, if any, at or before Closing. b. Cash at Closing. All amounts paid by Buyer at Closing including Cash at Closing, plus Buyer's closing costs, shall be in funds which comply with all applicable Colorado laws, which include cash, electronic transfer funds, certified check, savings and loan teller's check and cashier's check (Good Funds). 5. APPRAISAL PROVISIONS. a. Appraisal Condition. This subsection a. ❑ Shall ® Shall Not apply. Buyer shall have the sole option and election to terminate this contract if the Purchase Price exceeds the Property's valuation determined by an appraiser engaged by N/A . The contract shall terminate by Buyer giving Seller written notice of termination and either a copy of such appraisal or written notice from lender which confirms the Property's valuation is less than the Purchase Price, received on or before the Appraisal Deadline (§ 2c). If Seller does not receive such written notice of termination on or before the Appraisal Deadline (§ 2c), Buyer waives any right to terminate under this subsection. b. Cost of Appraisal. Cost of any appraisal to be obtained after the date of this contract shall be timely paid by ❑Buyer. ❑Seller. 8. PROPERTY DISCLOSURE AND INSPECTION. On or before Seller's Property Disclosure Deadline (§ 2c), Seller agrees to provide Buyer with a written disclosure of adverse matters regarding the Property completed by Seller to the best of Seller's current actual knowledge. a. Inspection Objection Deadline. Buyer shall have the right to have inspection(s) of the physical condition of the Property and Inclusions, at Buyer's expense. If the physical condition of the Property or Inclusions is unsatisfactory in Buyer's subjective discretion, Buyer shall, on or before Inspection Objection Deadline (§ 2c): (I)notify Seller in writing that this contract is terminated, or (2)provide Seller with a written description of any unsatisfactory physical condition which Buyer requires Seller to correct (Notice to Correct). If written notice is not received by Seller on or before Inspection Objection Deadline (§ 2c), the physical condition of the Property and Inclusions shall be deemed to be satisfactory to Buyer. b. Resolution Deadline. If a Notice to Correct is received by Seller and if Buyer and Seller have not agreed in writing to a settlement thereof on or before Resolution Deadline (§ 2c), this contract shall terminate one calendar day following the Resolution Deadline (§ 2c), unless before such termination Seller receives Buyer's written withdrawal of the Notice to Correct. c. Damage; Liens; Indemnity. Buyer is responsible for payment for all inspections, surveys, engineering reports or for any other work performed at Buyer's request and shall pay for any damage which occurs to the Property and Inclusions as a result of such activities. Buyer shall not permit claims or liens of any kind against the Property for inspections, surveys, engineering reports and for any other work performed on the Property at Buyer's request. Buyer agrees to indemnify, protect and hold Seller harmless from and against any liability, damage, cost or expense incurred by Seller in connection with any such inspection, claim, or lien. This indemnity includes Seller's right to recover all costs and expenses incurred by Seller to enforce this subsection, including Seller's reasonable attorney fees. The provisions of this subsection shall survive the termination of this contract. 9. CLOSING. Delivery of deed(s) from Seller to Buyer shall be at Closing (Closing). Closing shall IIIIII IIIIISILVIA VIIIIII VIII IIII IIIIII IIIIII III VIII IIII IIII O IS Page: / 20 ©0 13 10:37P be on the date specified as the Closing Date (§ 2c) or by mutual agreement at an earlier date. The hour and place of Closing shall be as designated by mutual agreement of the parties. 10. TRANSFER OF TITLE. Subject to tender or payment at Closing as required herein and compliance by Buyer with the other terms and provisions hereof, Seller shall execute and deliver a good and sufficient GENERAL WARRANTY deed to Buyer, at Closing, conveying the Property free and clear of all taxes except the general taxes for the year of Closing. Except as provided herein, title shall be conveyed free and clear of all liens, including any governmental liens for special improvements installed as of the date of Buyer's signature hereon, whether assessed or not. Title shall be conveyed subject to: a. those specific Exceptions described by reference to recorded documents as reflected in the Title Documents accepted by Buyer in accordance with § 8a [Title Review], b. distribution utility easements, c. those specifically described rights of third parties not shown by the public records of which Buyer has actual knowledge and which were accepted by Buyer in accordance with § 8b [Matters Not Shown by the Public Records], and d. inclusion of the Property within any special taxing district, and e. the benefits and burdens of any declaration and party wall agreements, if any, and f. other 11. PAYMENT OF ENCUMBRANCES. Any encumbrance required to be paid shall be paid at or before Closing from the proceeds of this transaction or from any other source 12. CLOSING COSTS; DOCUMENTS AND SERVICES. Buyer and Seller shall pay, in Good Funds, their respective Closing costs and all other items required to be paid at Closing, except as otherwise provided herein. Buyer and Seller shall sign and complete all customary or reasonably required documents at or before Closing. Fees for real estate Closing services shall be paid at Closing by ® One - Half by Buyer and One -Half by Seller ❑ Buyer ❑ Seller ❑ Other The local transfer tax of N/A % of the Purchase Price shall be paid at Closing by Buyer e Seller. Any sales and use tax that may accrue because of this transaction shall be paid when due by Buyer ❑ Seller. 13. PRORATIONS. The following shall be prorated to Closing Date, except as otherwise provided: a. Taxes. Personal property taxes, if any, and general real estate taxes for the year of Closing, based on ® The Taxes for the Calendar Year Immediately Preceding Closing ❑ The Most Recent Mill Levy and Most Recent Assessment El Other b. Rents. Rents based on ❑ Rents Actually Received H Accrued. Security deposits held by Seller shall be credited to Buyer. Seller shall assign all leases to Buyer and Buyer shall assume such leases. c. Other Prorations. Water, sewer charges; and interest on continuing loan(s), if any; and d. Final Settlement. Unless otherwise agreed in writing, these prorations shall be final. 14. POSSESSION. Possession of the Property shall be delivered to Buyer on Possession Date and Possession Time (§ 2c), subject to the following lease(s) or tenancy(s): NONE If Seller, after Closing, fails to deliver possession as specified, Seller shall be subject to eviction and shall be additionally liable to Buyer for payment of $-Q- _ per day from the Possession Date (§ 2c) until possession is delivered. 15. NOT ASSIGNABLE. This contract shall not be assignable by Buyer without Seller's prior written consent except as provided in paragraph #5 of the Addendum. Except as so restricted, this contract shall inure to the benefit of and be binding upon the heirs, personal representatives, successors and assigns of the parties. 4 508170 Q$ 20 5 130:379 SILVIA DAVIS PITKIN COUNTY CO R 0.00 0 0.00 16. CONDITION OF, AND DAMAGE TO PROPERTY AND INCLUSIONS. Except as otherwise provided in this contract, the Property, Inclusions or both shall be delivered in the condition existing as of the date of this contract, ordinary wear and tear excepted. a. Casualty; Insurance. In the event the Property or Inclusions shall be damaged by fire or other casualty prior to Closing, in an amount of not more than ten percent of the total Purchase Price, Seller shall be obligated to repair the same before the Closing Date (§ 2c). In the event such damage is not repaired within said time or if the damages exceed such sum, this contract may be terminated at the option of Buyer by delivering to Seller written notice of termination. Should Buyer elect to carry out this contract despite such damage, Buyer shall be entitled to a credit, at Closing, for all the insurance proceeds resulting from such damage to the Property and Inclusions payable to Seller but not the owners' association, if any, plus the amount of any deductible provided for in such insurance policy, such credit not to exceed the total Purchase Price. b. Damage; Inclusions; Services. Should any Inclusion(s) or service(s) (including systems and components of the Property, e.g. heating, plumbing, etc.) fail or be damaged between the date of this contract and Closing or possession, whichever shall be earlier, then Seller shall be liable for the repair or replacement of such Inclusion(s) or service(s) with a unit of similar size, age and quality, or an equivalent credit, but only to the extent that the maintenance or replacement of such Inclusion(s), service(s) or fixture(s) is not the responsibility of the owners' association, if any, less any insurance proceeds received by Buyer covering such repair or replacement. The risk of loss for any damage to growing crops, by fire or other casualty, shall be home by the party entitled to the growing crops, if any, as provided in § 3 and such party shall be entitled to such insurance proceeds or benefits for the growing crops, if any. c. Walk -Through; Verification of Condition. Buyer, upon reasonable notice, shall have the right to walk through the Property prior to Closing to verify that the physical condition of the Property and Inclusions complies with this contract. 17. RECOMMENDATION OF LEGAL AND TAX COUNSEL. By signing this document, Buyer and Seller acknowledge that the Selling Company or the Listing Company has advised that this document has important legal consequences and has recommended the examination of title and consultation with legal and tax or other counsel before signing this contract. 18. TIME OF ESSENCE AND REMEDIES. Time is of the essence hereof. If any note or check received as Earnest Money hereunder or any other payment due hereunder is not paid, honored or tendered when due, or if any other obligation hereunder is not performed or waived as herein provided, there shall be the following remedies: a. If Buyer is in Default: ❑ (1) Specific Performance. Seller may elect to treat this contract as canceled, in which case all payments and things of value received hereunder shall be forfeited and retained on behalf of Seller, and Seller may recover such damages as may be proper, or Seller may elect to treat this contract as being in full force and effect and Seller shall have the right to specific performance or damages, or both. ® (2) Liquidated Damages. All payments and things of value received hereunder shall be forfeited by Buyer and retained on behalf of Seller and both parties shall thereafter be released from all obligations hereunder. It is agreed that such payments and things of value are LIQUIDATED DAMAGES and (except as provided in subsection c) are SELLER'S SOLE AND ONLY REMEDY for Buyer's failure to perform the obligations of this contract. Seller expressly waives the remedies of specific performance and additional damages. b. If Seller is in Default: Buyer may elect to treat this contract as canceled, in which case all payments and things of value received hereunder shall be returned and Buyer may recover such damages as may be proper, or Buyer may elect to treat this contract as being in full force and effect and Buyer shall have the right to specific performance or damages, or both. 7 III I III IIIIII II III VIII I III IIII III III 058170 20 13 0 10:3W SILVIR DAVIS PITKIN COUNTY CO R 0.00 D 0.00 c. Costs and Expenses. In the event of any arbitration or litigation relating to this contract, the arbitrator or court shall award to the prevailing party all reasonable costs and expenses, including attorney fees. 19. EARNEST MONEY DISPUTE. Notwithstanding any termination of this contract, Buyer and Seller agree that, in the event of any controversy regarding the Earnest Money and things of value held by broker or Closing Company (unless mutual written instructions are received by the holder of the Earnest Money and things of value), broker or Closing Company shall not be required to take any action but may await any proceeding, or at broker's or Closing Company's option and sole discretion, may interplead all parties and deposit any moneys or things of value into a court of competent jurisdiction and shall recover court costs and reasonable attorney fees. 20. TERMINATION. In the event this contract is terminated, all payments and things of value received hereunder shall be returned and the parties shall be relieved of all obligations hereunder, subject to §§ IOc, 21 and 22. 21. ADDITIONAL PROVISIONS. (The language of these additional provisions has not been approved by the Colorado Real Estate Commission.) SEE ADDENDUM NO. 1, ATTACHED HERETO. 22. ENTIRE AGREEMENT; SUBSEQUENT MODIFICATION; SURVIVAL. This contract constitutes the entire contract between the parties relating to the subject hereof, and any prior agreements pertaining thereto, whether oral or written, have been merged and integrated into this contract. No subsequent modification of any of the terms of this contract shall be valid, binding upon the parties, or enforceable unless made in writing and signed by the parties. Any obligation in this contract which, by its terms, is intended to be performed after termination or Closing shall survive the same. 23. FACSIMILE. Signatures ® May ❑ May Not be evidenced by facsimile. Documents with original signatures shall be provided to the other party at Closing, or earlier upon request of any party. 24. NOTICE. neo,..,.., for 4he ne4i .e requesting mediation aeseribed in J-24-, any notice to Buyer shall be effective when received by Buyer or by Selling Company and any notice to Seller shall be effective when received by Seller or Listing Company. 25. NOTICE OF ACCEPTANCE; COUNTERPARTS. This proposal shall expire unless accepted in writing, by Buyer and Seller, as evidenced by their signatures below, and the offering party _,,,,eaves nefiee ef aeeeptanee purstian4 to § 2:7 en or- before Aeeeptenee Deadline Date aad Aeeeptanee Deadline Time (§ e). If accepted, this document shall become a contract between Seller and Buyer. A copy of this document may be executed by each parry, separately, and when each parry has executed a copy thereof, such copies taken together shall be deemed to be a full and complete contract between the parties. BOARD OF COUNTY COMMISSIONERS OF PIT COUNTY �Bu-�,dp Buyer y: a 1 aL ap e y , az—C 1�"iBuyer Date of Buyer's Signature:Q3 - I5 —O S Date of Buyer's Signature: Buyer's Address: 530 East Main Street, 3`d Floor, Aspen, Colorado 81611 Buyer's Telephone No: (970) 920- 5200 Buyer's Fax No: (970) 920-5198 6 [NOTE: If this offer is being countered or rejected, do not sign this document. Refer —to§291 THE GOLDSMITH FAMILY TRUST e er y: r4,r�VA. UoldsmiTiSeller Date of SellTs Signature: Date of Seller's Signature: Seller's Address: 855 Moore Drive, Aspen, Colorado 81611 Seller's Telephone No: (970) 948-5251 Seller's Fax No: (970) 920-9434 26. COUNTER; REJECTION. This offer is ❑ Countered ❑ Rejected. Initials only of party (Buyer or Seller) who countered or rejected offer END OF CONTRACT ---- ADDENDUMN0. 1, FOLLOWS THIS PAGE II II IIIIII III I I III II I I II ®8 03/23/2005 �9 of 13 0 2 05 10:379 SILVIA DAVIS PITKIN COUNTY CO R 0.00 D 0.00 III II II III III I III I III I II II I II 508170 20055f13 0 10:37; SILVIR DAVIS PITKIN COUNTY CO R 0.00 D 0.00 ADDENDUM NO.1 TO VACANT LAND/FARM AND RANCH CONTRACT TO BUY AND SELL REAL ESTATE BETWEEN BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO AS BUYER AND THE GOLDSMITH FAMILY TRUST DATED OCTOBER 24, 1991 AS SELLER, DATED FEBRUARY 15, 2005 This Addendum is made a part of that certain Contract to Buy and Sell Real Estate (Vacant Land) dated February 15, 2005 ("Contract") between Pitkin County Board of County Commissioners as buyer ("Buyer") and The Goldsmith Family Trust dated October 24, 1991, as seller ("Seller"), with respect to property known as the Broker Lode Mining Claim, USMS #6147, 10 acres, more or less, in the County of Pitkin ("Property"). In the event of any conflict or inconsistency between the provisions of this Addendum and the Contract, the provisions of this Addendum shall govern and control. 1. TRANSFERABLE DEVELOPMENT RIGHT. Seller agrees to obtain a Transferable Development Right (TDR) for the Property under the Pitkin County Land Use Code. The certificate evidencing the TDR shall be placed into escrow at the time of Closing. In the event that Buyer shall negotiate and contract for the sale or transfer of the certificate of transferable development right. Upon such sale or transfer, all proceeds shall be payable to the Buyer. Buyer and Seller further recognize that the County, in its sole discretion, could elect to grant more than one TDR. In the event that occurs, the Seller may retain any TDRs in excess of the one to be placed into escrow pursuant to this paragraph, provided, however, that nothing contained herein shall be construed as obligating Pitkin County to issue more than one TDR. 2. CONSERVATION EASEMENT. Buyer and Seller acknowledge that the current fair market value of the Property being conveyed to Buyer under this Contract may exceed Buyers purchase price and therefore Seller wishes to seek tax benefits through the donation of a conservation easement to an appropriate organization prior to, or at, the closing. 3. ENVIRONMENTAL ASSESSMENT. Seller acknowledges that Buyer requires an environmental assessment be completed, at Buyer's expense, prior to the close of the Inspection Objection Deadline provided in Paragraph 2c. Buyer will use best faith efforts to secure the environmental assessment by this date. However, Seller acknowledges that Buyer's ability to meet this deadline is dependant on weather, snow coverage, and the like and agrees that the inspection period and closing date may be extended for a reasonable time if necessary to allow completion of the environmental assessment. 4. COUNTY APPROVAL. Notwithstanding the signature hereto by the Open Space Director on behalf of Buyer, the obligation of Buyer to perform hereunder is expressly conditioned upon the adoption by Buyer of an ordinance authorizing the sale of the Property to Buyer pursuant to 8 IIIIIIIII,IIIIII II III VIII VIII VIII IIIIIII 5©8 11 of 12005 ie 3W SILVIA DAVIS PITKIN COUNTY CO R 0.00 D 0.00 this Contract. In the event such ordinance is not duly adopted by Buyer within forty-five (45) days following the date of this Contract or any extension thereof as the parties may, in writing, agree, either Seller or Buyer may, upon written notice to the other, terminate this Contract whereupon Buyer shall be entitled to a prompt return of all Earnest Money paid. In the event such ordinance is timely adopted. Buyer shall, at the request of Seller, re -execute this Contract by the signature of the Chairman or Vice -Chairman of the Pitkin County Board of County Commissioners. 5. ADDITIONAL DOCUMENTS. At Closing, Seller shall execute and deliver such documents as shall be necessary to transfer and convey the Property to Buyer, free and dear of all liens and encumbrances, all right, title and interest of Seller. 6. REAL ESTATE ROKERAGE. Each of Seller and Buyer represent and warrant that said party has dealt with no other brokers or salespersons in connection with this transaction and each party agrees that in the event of any claim by any broker or salesperson who may have rendered services in connection with this transaction at the request of such party or with the knowledge or consent of such parry, then such party shall defend, hold harmless and indemnify the other party against such claims and all costs and expenses (Including reasonable attorneys' fees and court costs), liabilities and judgments resulting therefrom. 7. INTEREST ON EARNEST MONEY. Any and all monies paid by Buyer prior to closing shall be placed in an insured, interest bearing money market -type account with a local commercial bank with all interest thereon to accrue for the benefit of Buyer. Whether or not Buyer shall ever be in default under this Contract resulting in a forfeiture of its earnest money, Buyer shall nevertheless be entitled to retain, as its sole and separate property, all interest earned on said earnest money. 8. NOTICES. Any notice, demand or document which either party is required or may desire to give, deliver or make to the other party shall be in writing and shall be personally delivered or given by facsimile transmission or given by United States certified mail, return receipt requested, addressed as follows: To Buyer: Board of County Commissioners of Pitkin County 530 East Main Street, 3`d Floor Aspen, CO 81611 Facsimile No.: (970) 920-5198 With copy to: John Ely, County Attorney Pitkin County, Colorado 530 East Main Street, Suite 302 Aspen, CO 81611 Facsimile No.: (970) 920-5198 To Seller: The Goldsmith Family Trust c/o Frank Goldsmith N ,,, Moore Drive IW[DAVIS PIiIIN COVTYV�ll��lll Aspen, CO 81612 Facsimile No.: (970) 920-9434 508170 Page: 12 of 13 03/23/2005 10:37f D 0.00 Any notice, demand or document so given, delivered or made by United States mail shall be deemed to have been given three (3) days after the same is deposited in the United States mail as certified matter, addressed as above provided, with postage thereon fully prepaid. Notice by facsimile transmission shall be deemed given upon receipt of a confirmation by sender and notice by personal delivery shall be deemed given when received. 9. MISCELLANEOUS. (a) Saturday. Sunday or Holiday. If any time period referred to in this Contract shall end on a Saturday, Sunday or legal holiday, such time period shall automatically be extended to the first regular business day thereafter. (b) Controlling Law. This Contract shall be construed in accordance with and governed by the laws of the State of Colorado. The parties hereto agree and intend that the proper and exclusive forum for any litigation of any disputes or controversies arising out of or related to this Contract shall be the District Court for Pitkin County, Colorado. For purposes of any litigation, the parties consent to the chosen forum for purposes of jurisdiction and venue. (c) Counterparts. This Contract (or any amendments, modifications or extensions hereof) may be executed in several counterparts and, after execution and as executed, shall constitute an agreement binding on all of the parties, notwithstanding that all of the parties are not signatories to the original or the same counterpart. (d) Further Assurances. Each of the parties agree to execute, acknowledge, deliver, file and record, or cause to be executed, acknowledged, delivered, filed and recorded such further instruments and documents and such certificates, and to do all things and acts as the other party may reasonably require in order to carry out the intentions of this Contract and the transaction contemplated hereby. (e) Survival. All of the warranties and representations contained in this Contract of an ongoing nature or intended to survive shall survive the actual closing of the transaction contemplated thereby. (f) Construction. No provision of this Contract shall be construed against or interpreted to the disadvantage of any parry by reason of such party having or being deemed to have requested, drafted, required or structured such provision. It is the intention of the parties that the party who employed the scrivener to prepare this Contract not be prejudiced by virtue of such act, nor shall tilts Contract be construed against such party by virtue of its actions in retaining the scrivener. 10 Iv (g) Attorneys' Fees. In the event of any action for breach of, to enforce the provisions of, or otherwise involving this Contract, the court in such action shall award a reasonable sum as attorneys' fees to the party who, in light of the issues litigated and the court's decision on those issues, was the prevailing party in the action. If a party voluntarily dismisses an action, a reasonable sum as attorneys' fees shall be awarded to the other party. SILViWDAVIS yYVCOUNTY NnR0. m00 I 508170 Page: 13 of 13 03/23/2005 10:37f D 0.00 II III li II 'i [I IIIIIII HIII III IIII III I 0 g B26Q Ily rp,� SILVIF DRVIS PITKIN COUNTY CO R 0.00 D 0.0(7 RACT DEED OF CONSERVATION EASEMENT IN GROSS /4)0,W,,?0ue o Ay BROKER LODE MINING CLAIM OR o K 4H c" 007 -,?Ms - THIS DEED OF CONSERVATION EASEMENT ("Easement Deed") is granted this __L:J!�day of May 2005, by GOLDSMITH FAMILY TRUST ("Grantor"), to and for the benefit of ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation having offices at 320 Main Street, Suite 204, Carbondale, Colorado 81623 (the "Trust') (collectively, the "Parties"). RECITALS WHEREAS, Grantor is the sole owner in fee simple of approximately 10 acres of real property in known as the Broker Lode Mining Claim U.S.M.S. #6147, in the Avalanche Creek drainage in Pitkin County, State of Colorado, more particularly described in Exhibit A (the "Property„); and - - - WHEREAS, the Property possesses wildlife, natural, scenic, open space values (collectively, "Conservation Values") of importance to the Trust, the people of Pitkin County, and the people of the State of Colorado that are worthy of preservation; and WHEREAS, the Property is located in a rural area of Pitkin County surrounded by National Forest lands, where recent development in the vicinity of the Property threatens to degrade the biological integrity as well as the rural and scenic character of the area; and WHEREAS, conservation of the Property is promoted by Pitkin County Land Use Code Article 2-120 Scenic Quality, which states that "[i]t is the policy of the County to preserve its natural, rural scenery for the benefit of its residents and the continued viability of its resort economy;" and Article 2-160 on Wildlife Management, which states that "[i]t is the policy of the County to identify and protect all wildlife habitat for the preservation of wildlife and prohibit land use patterns which disrupt such habitat." In addition, Article 2-310, the Ecological Bill of Rights (EBOR), states that "[a]s residents of the City of Aspen and of Pitkin County, and stewards of natural heritage and resources, we see the integrity of our valley ecosystem increasingly challenged by human activity. Population growth and the accompanying sprawl are seriously damaging and threatening to destroy the ecological carrying capacity (environmental sustainability) of the valley. Therefore it is the policy of the County to implement the following rights: The right to breathe clean air and enjoy clear vistas,...the right to the preservation and restoration of the native wildlife and plant diversity by preservation of sufficient habitat... the right to dedicated open space protected from urbanization and development....". Protection of the Property is also promoted by the Crystal River Valley Master Plan adopted in September 2003, which states that "[o]ur valley is first and foremost a place where preservation of the natural environment and the protection of our rural character are valued. As the rest of our state becomes increasingly urbanized, the Crystal River Valley is a place where the rural character should remain substantially unchanged. We value the preservation of open space, wildlife habitat ... and water quality in the Crystal River valley"; and Land Trust F +.„ 32) Main Street, Suite 204 Carbondale, CO 81623 (970) 963-C440 / 510269 !IIIIII VIII IIIIII ILII IIIIIIIiIII VIII III VIII IIII ILI0Page: 2 of 5/18 /2005 01:47 O 0 0.00 WHEREAS, in particular, the Property contains wildlife habitat that would be severely disrupted by development on the Property. The Property lies within the core of one of the most critical bighorn sheep habitat areas in the entire Crystal River watershed. The geology, slope, aspect, elevation, and vegetation combine to provide excellent winter range where sheep concentrate in large numbers throughout the winter. In addition, the Property is centrally located within a bighorn production area that is essential to the persistence of the Crystal Valley bighom sheep population. The protection of the Broker Lode maintains the connectedness of this herd's northern and southern home range; and WHEREAS, the Property is within important elk winter range, severe winter range, and an important winter concentration area and also has special habitat features such as cliffs and talus required by wildlife species such as bushy -tailed woodrats, canyon wrens, golden eagles, mountain lions, rock squirrels, rock wren, Townsend's big -eared bat, turkey vultures, Uinta chipmunks, Violet -green swallows, and white -throated swifts. Townsend's big -eared bat is considered imperiled or very rare in Colorado by the Colorado Natural Heritage Program and is listed as a Species of Concern by the State of Colorado; and - ----- - --- --- - WHEREAS the Trust acknowledges and agrees that continued use of the land for general conservation purposes does not impair or interfere with the Conservation Values of the Property; and WHEREAS, Grantor intends, as owner of the Property, to convey to the Trust the right to preserve and protect the Conservation Values of the Property in perpetuity and the Trust agrees by accepting this grant to honor the intentions of Grantor stated herein and to preserve and protect in perpetuity the Conservation Values of the Property for the benefit of this generation and the generations to come; and WHEREAS, the Trust is a charitable organization as described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code") and is a publicly -supported organization as described in Section 170(b)(1)(A) of the Code whose primary purpose is to preserve and protect the natural, scenic, agricultural, historical, and open space resources of the greater Roaring Fork Valley area, including the area in which the Property is located, by assisting landowners who wish to protect their land in perpetuity, and is a "qualified organization" to do so within the meaning of Section 170(h)(3) of the Code; and WHEREAS, the State of Colorado has recognized the importance of private efforts toward the preservation of natural systems in the State by the enactment of C.R.S. §§38-30.5-101 et seq.; and WHEREAS, the Board of Directors of the Trust has duly authorized the Trust's Executive Director or her designee to execute and accept conservation easements on behalf of the Trust. NOW, THEREFORE, in consideration of the matters above, the mutual covenants, terms, conditions and restrictions contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 2 51 III IIII III II VIII II I I II II II II II II O5g azsg 101 :47 SILVIA DAVIS PITKIN COUNTY CO R 0.00 D 0.00 1. Grant. Grantor hereby voluntarily and irrevocably grants and conveys to the Trust a perpetual Conservation Easement in gross (the "Easement Deed"), pursuant to C.R.S. §§38-30.5- 101 et seq., consisting of the rights and restrictions enumerated herein, over and across the Property described in Exhibit A attached hereto, to have and to hold said Easement Deed unto the Trust and its successors and assigns forever. The Easement Deed shall constitute a binding servitude upon the Property and shall be subject to prior reservations, easements, encumbrances and exceptions of record, except as otherwise set forth herein. 2. Purposes. Pursuant to the terms of C.R.S. §§ 38-30.5-101 et seq., the purposes of this Easement Deed are to assure that the Property will remain forever predominantly in its [i.e., scenic, natural and open space (including agricultural)] condition, subject to the uses of the Property permitted hereunder, and to prevent any use of the Property that is inconsistent with the preservation and protection of the Conservation Values of the Property and, in the event of their degradation or destruction, to restore such Conservation Values of the Property. 3. Intent. Subject only to the Purpose set forth above and express prohibitions below, the- intent- of -the -_Par -ties is -to permit -all --uses of the Property -that -are -consistent -with -the preservation and protection of the Conservation Values as determined by Grantee in its sole discretion. Nothing in this Easement Deed is intended to compel a specific use of the Property other than the preservation and protection of the Conservation Values. 4. Baseline Documentation. The Parties acknowledge that a Baseline Documentation of the Conservation Values of the Property has been prepared by Jonathan Lowsky, of Wildlife and Wetlands Solutions, a company familiar with conservation easements, the Property, and the environs. The Trust and Grantor have reviewed and approved the Baseline Documentation, as summarized in Exhibit B (Baseline Documentation Summary), as an accurate representation of the biological and physical condition of the Property at the time of this grant. However, the Baseline Documentation is not intended to preclude the use of other evidence, such as reports, maps, and photographs, to establish the present condition of the Property if there is a controversy over its use. Grantor has retained a copy of the Baseline Documentation for its records and a copy of the Baseline Documentation is on file with the Trust. 5. Rights of Trust. To accomplish the purposes of this Easement Deed, Grantor conveys the following rights to the Trust: 5.1. The right to preserve and protect the Conservation Values of the Property in perpetuity; 5.2. The right to enter upon the Property at reasonable times, to inspect the Property thoroughly, to monitor Grantor's compliance with, and otherwise enforce the terms of this Easement Deed; provided that such entry shall be upon seventy-two (72) hour prior notice to Grantor and shall not unreasonably interfere with Grantor's use and quiet enjoyment of the Property, except that no such notice shall be required in the event the Trust reasonably believes that immediate entry upon the Property is essential to prevent or mitigate a violation of this Easement Deed; 3 VIII VIIIA II VIIIIIIIIIIIIIIIIII III 111111111 Jill 05/18/2005 019 01 4 SILVIR DRVIS PITKIN COUNTY CO R 0.00 D 0.00 5.3. The right to prevent any activity on or use of the Property that is inconsistent with the purposes of this Easement, or which may be inconsistent with the preservation and protection of the Conservation Values of the Property, and to require the restoration of such areas or features of the Property that are damaged by any inconsistent activity or use; 5.4. Any other rights that the Parties may approve consistent with the purposes of this Easement and the Conservation Values. 6. Prohibited and Permitted Uses. The following uses and practices by Grantor, though not an exhaustive recital, are consistent with or prohibited by this Easement Deed. Certain of these consistent uses and practices are identified as being subject to specified conditions, to the notice provision as described in Section 10, or to the requirement of and procedures for prior approval by the Trust as described in Section 11, or both. Any activity on or use of the Property inconsistent with the purposes of this Easement Deed or with the preservation and protection of the Conservation Values of the Property is prohibited. -- - - 6.1._ Building Rights .Grantor. shall _.not -construct, _improve,_ place, or replace any buildings, structures, camping accommodations, mobile homes, parking lots, or billboards. 6.2. Easements and Roadways_ Grantor shall not convey easements or rights -of -ways, pave or widen existing roadways or construct new roadways except as required under condemnation proceedings pursuant to Subsection 14 herein; 6.3. Surface Disturbance. Grantor shall not change, disturb, alter, or impair the relatively natural habitat for plants, wildlife, or similar ecosystems within and upon the Property, except in emergencies for fire or disease prevention. "Surface Disturbance" includes the removal, destruction, or cutting of native vegetation and the change in the topography of the Property by placement or removal of soil, gravel, land fill, dredging soils, or other material; 6.4. Non-native Species. Grantor shall not introduce non-native plant or animal species; 6.5. Fencing. Fencing is prohibited on the Property; 6.6. Livestock and Grazing. Grantor shall not graze or keep livestock on the Property; 6.7. Use of Chemicals. Grantor may use pesticides and herbicides on the Property in a manner consistent with sound environmental conservation practices as determined by the NRCS, or other such entity as may be qualified at the time to oversee such practices; 6.8. Mineral Rights. At the time of granting this Easement Deed, Grantor owns the mineral rights. Grantor's current or future ownership of mineral rights shall be subject to the following provisions: A. Subsurface Mineral Rights. Grantor shall not sell, transfer or otherwise separate Grantor's share of the subsurface mineral rights to oil or natural gas from 510269 IIIIII VIII IIIIII VIII IIII IIIIIII VIII III VIII IIII IIII 0 0s// 1 8 02 00 0001 :4P the Property. The Grantor may not lease to a third party the right to explore for or extract oil and gas from below the surface of the Property; B. Surface Mineral Rights. Grantor shall neither transfer, lease or otherwise separate the soil, sand, gravel, rock, or any other mineral substance from the surface of the Property nor explore for or extract soil, sand, gravel, rock, or other minerals from the surface of the Property; 6.9. Subdivision. Grantor may not divide or subdivide (including de facto subdivision) the Property into two or more parcels of land; 6.10. Motor Vehicles. Grantor shall use motorized vehicles off roadways now existing only when such use is consistent with preservation and protection of the Conservation Values of the Property, except in emergencies; 6.11. Trash. Grantor shall not accumulate, dump, or dispose of trash, garbage, or other refuse on the Property; including_ the dumping, injection, burning, or burial of man-made materials or any other material then known or suspected to be environmentally hazardous; 6.12. Water Features. Grantor shall not manipulate, divert, dam, pollute, drain, dredge, or otherwise alter the naturally -occurring streams, wetlands, springs, lakes, ponds, or other surface or subsurface water features on the Property in a manner that degrades for destabilizes their natural banks or shorelines], or otherwise is inconsistent with the preservation and protection of the Conservation Values of the Property; 6.13. Commercial and Industrial Activities. Grantor shall not conduct any commercial or industrial activity on the Property inconsistent with the preservation and protection of Conservation Values; 6.14. Recreation. Grantor shall not construct or maintain a golf course on the Property; however, Grantor may use the Property for low -impact recreational uses, such as biking, cross country skiing, that are consistent with the preservation and protection of the Conservation Values of the Property, Section 170(h)(3) of the Code, and C.R.S. § 38-30.5-102; 6.15. Communications Facilities. Grantor may not erect, construct, install, locate, or relocate a communication facility, a telecommunication facility, or any other appurtenant structures, equipment, or material on the Property; 6.16. Utilities. Grantor may not install utility lines or substations on the Property; 6.17. Other Technology. Grantor may not install and / or operate wind -powered electric generators, solar collectors, fuel cells, and/or other technology on the Property; 6.18. Lighting. Grantor may not install external lighting on the Property; 7. Reserved Rights. Grantor reserves to itself and to its personal representatives, heirs, successors, and assigns, all rights accruing from its ownership of the Property, including the right 510269 Page: IIIIIIIVIIIIIIIIIVIIIIIIIIIIIIIIVIIIIIIVIIIIIIIIIIIO 05/18/02000001.47 I to engage in all uses of the Property not expressly prohibited herein that are not inconsistent with the purposes of this Easement Deed. Grantor shall notify the Trust in writing, as described in Sections 10 and 11, before exercising reserved rights that might not be consistent with the preservation and protection on the Conservation Values of the Property. Grantor has the burden to prove that Grantor's uses are consistent with the purposes of this Easement Deed and consistent with the preservation and protection on the Conservation Values of the Property. 8. Access. By terms of this Easement Deed, Grantor does not afford the public any more than visual access to any portion of the Property, although Grantor may permit public access to the Property on such terms and conditions as it deems appropriate, provided that such access is consistent with the terms of this Easement Deed. 9. Representations and Warranties. Grantor represents and warrants that, after reasonable investigation and to the best of its knowledge: 9.1. No substance defined, listed, or otherwise classified pursuant to any federal, state, or local_ law, .regulation,.. or_ _requirement as hazardous, _.toxic,_ polluting,. or _otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment exists or has been released, generated, treated, stored, used, disposed of, deposited, abandoned, or transported in, on, from, or across the Property, except for fuels customarily used or transported in connection with camping, wrangling, agricultural and construction activities on the Property [e.g. anti -freeze, paint, veterinary medicines]; 9.2. There are not now any underground storage tanks located on the Property, whether presently in service or closed, abandoned, or decommissioned, and no underground storage tanks have been removed from the Property in a manner not in compliance with applicable federal, state, and local laws, regulations, and requirements; 9.3. Grantor and the Property are in compliance with all federal, state, and local laws, regulations, and requirements applicable to the Property and its use; 9.4. There is no pending or threatened litigation in any way affecting, involving, or relating to the Property; 9.5. No civil or criminal proceedings or investigations have been instigated at any time or are now pending, and no notices, claims, demands, or orders have been received, arising out of any violation or alleged violation of, or failure to comply with, any federal, state, or local law, regulation, or requirement applicable to the Property or its use, nor do there exist any facts or circumstances that Grantor might reasonably expect to form the basis for any such proceedings, investigations, notices, claims, demands, or orders; and 9.6. Grantor warrants that Grantor has good and sufficient title to the Property, that Grantor has good right, full power and lawful authority to grant and convey this Easement Deed, that any mortgages or liens on the Property are and shall remain subordinate to the terms of this Easement Deed, and Grantor hereby promises to warrant and forever defend the title to the Easement Deed against all and every person or persons lawfully claiming by, through or under 6 / IIIIII VIII II III VIII IIII IIIIIII ILII III III I IIII IIII 0 9 00 05/18/,0051 :47. SILVIA DAVIS PITKIN COUNTY CO R 0.0 Grantor, the whole or any part thereof, except for rights-of-way, easements, restrictions, covenants and mineral reservations of record, which are acceptable to the Trust at the time of execution of this Easement Deed. 10. Notice of Intention to Undertake Certain Permitted Actions. The purpose of requiring Grantor to notify the Trust before undertaking certain permitted activities or uses is to afford the Trust an opportunity to ensure that the activities or uses in question are designed and carried out in a manner consistent with the purposes of this Easement Deed. Whenever notice and the Trust's approval, as described in Section 11 below, are required, Grantor shall notify the Trust in writing not less than sixty (60) days prior to the date Grantor intends to undertake the activity or use in question, unless this Easement Deed provides otherwise. Whenever notice is required without the Trust's approval, Grantor shall notify the Trust in writing not less than thirty (30) days in advance of the proposed activity or use. The notice shall describe the nature, scope, design, location, timetable, and any other material aspect of the proposed activity or use in sufficient detail to permit the Trust to make an informed judgment as to the activity or use's consistency with the purposes of this Easement Deed and the preservation and protection of the - -...Property's Conservation Values - -- - — - - - — — 11. The Trust's Approval. Whenever this Easement Deed requires that Grantor obi the Trust's approval of any activity on or use of the Property, such approval shall be given in Trust's sole discretion. Where the Trust's approval is required, the Trust shall grant or withh its approval in writing within thirty (30) days of receipt of Grantor's written notice (as descri in Section 10, above) of and request therefor. The Trust's approval may be withheld at Trust's sole discretion if the Trust determines that the action as proposed would be inconsisl with the preservation and protection of the Conservation Values or the purposes or terms of Easement Deed; the reason(s) for such a determination shall be set forth with specificity by Trust in a written notice to Grantor. Where a modification of the proposed use or activity Grantor would render the same consistent with the purposes of this Easement Deed and Conservation Values, the Trust may specify, in such written notice to Grantor, such requi modifications. 12. Trust's Remedies: Enforcement. The Trust shall have the right to prevent a correct or require correction of violations of the terms and purposes of this Easement Deed. T Trust may enter the Property for the purpose of inspecting for violations in accordance w Subsection 6.2 above. If the Trust finds what it believes is a violation, or a threat of a violatic the Trust shall notify Grantor of the nature of the alleged violation. Upon receipt of this notii Grantor shall immediately discontinue any activity that could increase or expand the alleg violation and shall either: (1) restore the Property as is best possible to its condition prior to t violation in accordance with a plan approved by the Trust; or (2) provide a written explanation Trust of the reason why the alleged violation should be permitted. If the Trust is not satisfi with Grantor's written explanation, the Parties agree to meet as soon as possible to resolve tl difference. If a resolution of this difference cannot be achieved at the meeting, the Parties agr to meet with a mutually acceptable mediator to attempt to resolve the dispute pursuant to Secti 12.1 below. I 510269 IllilllVIIIIIiIIIVIIIIIIIIIIIIIIVIIIIIIVIII page: IIIIIIII05/18201'4 O 0 0.00 7 SILVIA DAVIS PITKIN COUNTY CO R 0.00 At any time, including if Grantor does not immediately discontinue any activity that could increase or expand the alleged violation while the Parties are attempting to resolve the alleged violation, the Trust may take appropriate legal action pursuant to the Sections below, including seeking injunctive relief by ex parte means if necessary, to stop an alleged violation. The Trust's remedies described in this Easement Deed shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity, including the right to recover any damages for loss of scenic or environmental values. The failure of the Trust to discover a violation or to take immediate legal action shall not bar the Trust from doing so within four (4) years from the date upon which the violation is discovered. 12.1. Mediation. If a dispute arises between the Parties concerning the consistency of any proposed use or activity with the purpose of this Easement Deed, and Grantor agrees not to proceed with the use or activity pending resolution of the dispute, either Party may refer the dispute to mediation by written request upon the other. Within ten (10) days of the receipt of such request, the Parties shall select a single trained and impartial mediator with experience in Easement Deeds and other land preservation tools. If the Parties are unable to agree on the - selection of a single mediator, -then the Parties shall- each- select a trained and -impartial mediator with experience in Easement Deeds and other land preservation tools, and those two mediators shall select a similarly skilled mediator who shall alone mediate the dispute. Mediation shall then proceed in accordance with the following guidelines: A. Purpose. The purpose of the mediation is to: (1) promote discussion between the Parties; (2) assist the Parties to develop and exchange pertinent information concerning the issues in dispute; and (3) assist the Parties to develop proposals which will enable them to arrive at a mutually acceptable resolution of the controversy. The mediation is not intended to result in any express or de facto modification or amendment of the terms, conditions, or restrictions of this Easement Deed; B. Participation. The mediator may meet with the Parties and their counsel jointly or ex parte. The Parties agree that they will participate in the mediation process in good faith and expeditiously, attending all sessions scheduled by the mediator, except in cases when the Trust believes that Conservation Values are continuing to be harmed during the mediation process, in which case the Trust can suspend its involvement in the mediation to remedy this threat of ongoing violation. Representatives of the Parties with settlement authority will attend mediation sessions as required by the mediator; C. Confidentiality. All information presented to the mediator shall be deemed confidential and shall be disclosed by the mediator only with the consent of the Parties or their respective counsel. The mediator shall not be subject to subpoena by any Party in any subsequent litigation. No statements made or documents prepared for mediation sessions shall be disclosed in any subsequent proceedings or construed as an admission of a party; 8 T IIIIIIIVIIIIIIIIIVIIIIIIIIIIIIIIIIIDIIIVIIIIIIIIIII Page:510 265 09.47 SILVIA DAVIS PITKIN COUNTY CO R 0.00 D 0.00 D. Time Period. Neither Parry shall be obligated to continue the mediation process beyond a period of sixty (60) days from the date of receipt of the initial request or if the mediator concludes that there is no reasonable likelihood that continuing mediation will result in a mutually agreeable resolution of the dispute. The Parties shall equally share and each bear 50% of the mediator's fees; 12.2. Iniunctive Relief. The Trust may bring an action at law or in equity, ex parte as necessary, in a court of competent jurisdiction, to enforce the terms of this Easement Deed and to enjoin by temporary or permanent injunction a violation, which may require restoration of the Property to the condition that existed prior to the violation; 12.3. Damages. The Trust shall be entitled to recover damages for violation of the terms of this Easement Deed or injury to the Conservation Values, including, without limitation, damages for the loss of scenic, aesthetic, or environmental values. Without limiting Grantor's liability therefor, the Trust, in its sole discretion, may apply any damages recovered to the cost of undertaking any restorative, remedial, corrective action on the Property; 12.4. Emergency Enforcement. If the Trust reasonably believes an ongoing or threatened imminent activity violates the Easement Deed, the Trust may, in its sole discretion, take immediate legal action as set forth in this Section 12 without prior notice to Grantor, without waiting for the period provided for cure to expire, and without waiting for the 60 -day mediation period to expire; 12.5. Scope of Relief. The Trust's rights under this Section 12 apply equally in the event of either actual or threatened violations of the terms of this Easement Deed. Grantor agrees that the Trust's remedies at law for any violation of the terms of this Easement Deed are inadequate and that the Trust shall be entitled to the injunctive relief described in Subsection 13.2, both prohibitive and mandatory, in addition to such other relief to which the Trust may be entitled, including specific performance of the terms of this Easement Deed, without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies. The Trust's remedies described in this Section 12 shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity; 12.6. Costs of Enforcement. All reasonable costs incurred by the Trust in enforcing the terms of this Easement Deed against Grantor, including, without limitation, costs and expenses of suit and reasonable attorney's fees, and any costs of restoration necessitated by Grantor's violation of the terms of this Easement Deed, shall be borne by Grantor only when a court finds the Trust acted in good faith in seeking enforcement; provided, however, that if Grantor ultimately prevails in a judicial enforcement action, each Party shall bear its own costs; 12.7. Forbearance Not a Waiver. Enforcement of the terms of this Easement Deed shall be at the sole discretion of the Trust, and any forbearance by the Trust to exercise its rights under this Easement Deed in the event of any breach of any term of this Easement Deed by Grantor shall not be deemed or construed to be a waiver by the Trust of such term or any subsequent breach of the same or any other term of this Easement Deed or of any of the Trust's rights under r 510/ IIIIIII IIIIIII IIILVIA DAVIS TIIIIIIIIIIIIIII IIIIIIII III IIIKIN COUNTY CO R 0. 00Pa:59 820000!947 this Easement Deed. No delay or omission by the Trust in the exercise of any right or remedy upon any breach by Grantor shall impair such right or remedy or be construed as a waiver; 12.8. Waiver of Certain Defenses. No action shall be commenced or maintained to enforce the terms of any building restriction described in this Easement Deed, or to compel the removal of any building or improvement, unless said action is commenced within four (4) years from the date of discovery of the violation for which the action is sought to be brought or maintained. To the extent that any defense available to Grantor pursuant to C.R.S. §38-41-119 is inconsistent with the foregoing, Grantor waives that defense. Grantor waives the defenses of laches, estoppel and prescription with regard to the enforcement of all other terms of this Easement Deed; 12.9. Acts Beyond Grantor's Control. Nothing contained in this Easement Deed shall be construed to entitle the Trust to bring any action against Grantor for any injury to or change in the Property resulting from causes beyond Grantor's control including, without limitation, fire, flood, storm, and earth movement, or from any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate- significant injury to the Property. resulting- from_ such _ causes. Grantor is not responsible for acts of third parties who are out of Grantor's control, except that Grantor is responsible for guests, invitees, and other third parties authorized by Grantor to access the Property; 13. Costs, Liabilities, Taxes and Environmental Compliance. 13.1. Costs, Legal Requirements and Liabilities. Grantor retains all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the Property, including the maintenance of adequate liability insurance coverage, except as provided herein. Grantor remains solely responsible for obtaining any applicable governmental permits and approvals for any construction or other activity or use permitted by this Easement, and all such construction or other activity or use shall be undertaken in accordance with all applicable federal, state, and local laws, regulations and requirements. Grantor shall keep the Property free of any liens arising out of any work performed for, materials furnished to, or obligations incurred by Grantor; 13.2. Taxes. Grantor shall pay before delinquency all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Property by competent authority (collectively "Taxes"), including any Taxes imposed upon, or incurred as a result of, this Easement, and shall famish the Trust with satisfactory evidence of payment upon request. The Trust is authorized, but in no event obligated, to make or advance any payment of Taxes, upon ten (10) days prior written notice to Grantor, 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 the Trust at the lesser of fifteen percent (15%) per annum, or the maximum rate allowed by law; 13.3. Remediation. If, at any time, there occurs, or has occurred, a release in, on, or about the Property of any substance now or hereafter defined, listed, or otherwise classified 10 16 510269 s VIII I� I) IIIIII LVIA DAVIS T II I� I IIII V I II III I IIKIN COUNTY CO R 0. 00 05/18/2005Page: 11 c 00 00 1547 pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment, Grantor agrees to take all steps necessary to assure its containment and remediation, including any cleanup that may be required, unless the release was caused by the Trust, in which case the Trust shall be responsible therefor; 13.4. Control. Nothing in this Grant shall be construed as giving rise, in the absence of a judicial decree, to any right or ability in the Trust to exercise physical or managerial control over the day-to-day operations of the Property, or any of Grantor's activities on 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 ("CERCLA"), and any Colorado state law counterpart; 13.5. Hold Harmless. To the maximum extent allowed by law, Grantor shall hold harmless the Trust and its members, directors, officers, employees, agents, and contractors and the heirs, personal representatives, successors, and assigns of each of them (collectively "AVLT Parties")- from and against all liabilities, penalties, costs,. losses, damages, expenses,_ cause. of action, claims, demands, or judgments, including, without limitation, court awarded third -party attorneys' fees, arising from or in any way connected with: (1) injury to or the death of 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, regardless of cause, unless due solely to the negligence of any of the AVLT Parties; (2) the violation or alleged violation of, or other failure to comply with, any state, federal, or local law, regulation, or requirement, including, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), by any person other than any of the AVLT Parties, in any way affecting, involving, or relating to the Property; (3) the presence or release of hazardous or toxic substances in, on, from, under or about the Property at any time, of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment, unless caused solely by any of the AVLT Parties; (4) tax benefits or consequences of any kind which result or do not result from entering into this Easement Deed, and (5) the obligations, covenants, representations, and warranties described herein. 14. Extinguishment and Condemnation. 14.1. Extinguishment. In granting this Easement, Grantor has considered the possibility that uses prohibited by the terms of this Easement Deed may become more economically valuable than permitted uses and that neighboring properties may be used entirely for such prohibited uses in the future. It is the intent of Grantor and the Trust that any such changes shall not be deemed circumstances justifying the termination or extinguishment of this Easement Deed. In addition, the inability of Grantor, or Grantor's heirs, successors or assigns, to conduct or implement any or all of the uses permitted under this Easement Deed, or the unprofitability of doing so, shall not impair the validity of this Easement Deed or be considered grounds for its termination or extinguishment. 11 I IIIIII VIII IIIIII VIII IIII IIIIIII VIII III IIIIII III IIII 510269 05/18/2005 01 :47 SILVIP DAVIS PITKIN COUNTY CO R 0.00 D 0.00 If circumstances arise in the future that render the purposes of this Easement Deed impossible to accomplish, this Easement Deed can only be terminated or extinguished, whether in whole or in part, by judicial proceedings in a court of competent jurisdiction after the courthas explored all options for importing other purposes for the Easement pursuant to the cy pres doctrine. Each Party shall promptly notify the other when it first learns of such circumstances. The amount of the proceeds to which the Trust shall be entitled, after the satisfaction of prior claims, from any sale, exchange, or involuntary conversion of all or any portion of the Property subsequent to such termination or extinguishment, shall be determined, unless otherwise provided by Colorado law at the time, in accordance with the Proceeds paragraph, below. The Trust shall use all such proceeds in a manner consistent with the conservation purposes of this Easement Deed; 14.2. Proceeds. Grantor and the Trust stipulate that as of the date of this Easement Deed, they are each vested with a real property interest in the Property. This percentage is equal to the percentage of reduction in fair market value to the Property after the Easement was granted, as shown by the appraisal to be completed by Mark Weston of Hunsperger &Weston -Associates.- The appraisal substantiating this reduction in -value shall beprovidedto, and remain on file with, the Trust. For purposes of this Subsection, the Trust's percentage interest in the Property shall remain constant in relation to any future fair market value of the Property. The values of the Property and the Easement shall be those values shown on the appraisal described above; 14.3. Condemnation. If all or any part of the Property is taken by exercise of the power of eminent domain or acquired by purchase in lieu of condemnation, whether by public, corporate, or other authority, so as to terminate this Easement, in whole or in part, Grantor and the Trust shall act jointly to recover the full value of the interests in the Property subject to the taking or in -lieu purchase and all direct or incidental damages resulting therefrom. All expenses reasonably incurred by Grantor and the Trust in connection with the taking or in -lieu purchase shall be paid out of the amount recovered. The Trust's share of the balance of the amount recovered shall be determined by multiplying that balance by the percentage set forth in subsection 14.2; 14.4. Application of Proceeds. The Trust shall use any proceeds received under the circumstances described in this Section 14 in a manner consistent with its conservation purposes, which are exemplified by this grant. 15. Assignment. The Trust may transfer this Easement Deed with notice given to Grantor, provided that the Trust may assign its rights and obligations under this Easement only to an organization that is (a) a qualified organization at the time of transfer under Section 170(h) of the Internal Revenue Code of 1986, as amended (or any successor provision then applicable), and the applicable regulations promulgated thereunder; (b) authorized to acquire and hold conservation easements under Colorado law; and (c) charged with a mission similar to that of the Trust. As a condition of such transfer, the Trust shall require the transferee to expressly agree, in writing, to carry out and uphold the purposes of this Easement Deed and the Conservation Values and otherwise assume all of the obligations and liabilities of the Trust set forth herein or created hereby. After such transfer, the Trust shall have no further obligation or liability under 12 /2 IIIIIIVIIIIIIIIIVIIIIIIIIIIIIIIVIIIIIIIIIIIIIIIIIII 59 82005 e1:47 SILVIA DAVIS PITKIN COUNTY CO R 0.00 D 0.00 this Easement Deed. The Trust agrees to give written notice to Grantor of an assignment at least sixty (60) days prior to the date of such assignment. The failure of the Trust to give such notice shall not affect the validity of such assignment nor shall it impair the validity of this Easement Deed or limit its enforceability in any way. 16. Subsequent Transfers. Grantor agrees to incorporate the terms of this Easement Deed in any Deed or other legal instrument by which it divests itself of any interest in the Property, including, without limitation, a leasehold interest. Grantor further agrees to give written notice to the Trust of the transfer of any such interest at least thirty (30) days prior to the date of such transfer, and provide the opportunity for the Trust to explain the terms of this to potential new owners prior to sale closing. The failure of Grantor to perform any act required by this paragraph shall not impair the validity of this Easement Deed or limit its enforceability in any way. 17. Notices. Any notice, demand, request, consent, approval, or communication that either Party desires or is required to give to the other shall be in writing and either served personally or sent by first class mail, postage prepaid, addressed as follows or to such other address as either party from time to time shall designate by written notice to the other: To Grantor: Cynthia Goldsmith Goldsmith Family Trust 855 Moore Dr. Aspen, CO 81611 With Copy to: Pitkin County Open Space and Trails 530 E. Main St. 3`d Flr Aspen, CO 81611 To the Trust: Aspen Valley Land Trust 320 Main Street, Suite 204 Carbondale, CO 81623 18. Recordation. The Trust shall record this instrument in timely fashion in the official records of Pitkin County, Colorado, and may re-record it at any time as may be required to preserve its rights in this Easement Deed. 19. Amendment. If circumstances arise under which an amendment to this Easement Deed would be appropriate to promote the purposes of the Easement Deed, Grantor and the Trust may jointly amend this Easement Deed. However, the Trust is under no obligation to amend this Easement Deed, and may decline any amendment in its sole discretion and exclusive judgment. Notwithstanding the foregoing, no amendment shall be permitted that would allow any additional residential structures to be constructed on the Property; provided, however, that Grantor may rebuild existing residential structures in the event of destruction after a natural disaster or accident in a manner consistent with the preservation and protection of the Conservation Values of the Property. Further, no amendment shall be allowed that will affect the qualifications of the Easement Deed under any applicable law. Any amendment must be 13 l 510269 IIIIII VIII IIIIII VIII IIII IIIIIII VIII III IIIIII III IIII OPage: 14 of 1-9 5/188//2005 01:47 SILVIA DAVIS PITKIN COUNTY CO R 0.00 D 0.00 consistent with, and protect, the purposes of the Easement Deed and the Conservation Values and may not affect the Easement Deed's perpetual duration. Any amendment must be in writing, signed by all the Parties, and recorded in the records of the Clerk and Recorder of Pitkin County, Colorado. 20. General Provisions. 20.1. Exhibits. The following Exhibits are attached to and incorporated by reference into this Easement Deed. Exhibit A: Property Legal Description, Exhibit B: Baseline Documentation Summary, Inventory of Relevant Features of Property, 20.2. Definitions. The terms "Grantor" and "the Trust," wherever used herein, and any pronouns used in place of those terms, shall refer to, respectively, Grantor and its heirs, personal representatives, executors, administrators,_ successors and assigns, and the Trust, its successors and assigns. The term "Property,"- - gn wherever used herein, shall refer to the land; 20.3. Controlling Law. The interpretation and performance of this Easement Deed shall be governed by the laws of the State of Colorado; 20.4. Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Easement Deed shall be liberally construed in favor of the grant to effect the purposes of the Easement Deed and the policy and purpose of C.R.S. §38-30.5-101 et seq. If any provision in this instrument is found to be ambiguous, an interpretation consistent with ensuring continuation of the purposes of the Easement Deed and the preservation and protection of the Conservation Values that would render the provision valid shall be favored over any interpretation that would render it invalid. The common law rules of disfavoring restrictions on the use of real property and construing restrictions in favor of the free and unrestricted use of real property shall not apply to interpretations of this Easement Deed or to disputes between the Parties concerning the meaning of particular provisions of this Easement Deed; 20.5. Severability. If any provision of this Easement Deed, or the application thereof to any person or circumstance, is found to be invalid, the remainder of the provisions of this Easement 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 be deemed severable and remain in full force and effect; 20.6. Entire Agreement. This instrument sets forth the entire agreement between the Parties with respect to the Easement Deed and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Easement Deed, all of which are merged herein; 20.7. No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Grantor's title in any respect; 14 l IIIIII VIII illill VIII IIII IIIIIII VIII III IIIIII III IIII Page: 82 05 005 01:47 SILVIA DAVIS PITKIN COUNTY LO R 0.00 D 0.00 20.8. Joint Obligation. The obligations imposed by this Easement Deed upon Grantor shall be joint and several (in the event that there is more than one Grantor); 20.9. Successors. The covenants, terms, conditions, and restrictions of this Easement Deed shall be binding upon, and inure to the benefit of, the Parties hereto and Grantor's respective personal representatives, heirs, successors, transferees, and assigns, and the Trust's successors, transferees, and assigns, and shall continue as a servitude running in perpetuity with the Property. Furthermore, it is contemplated that Grantor's remainder interest in the Property will be conveyed to Pitkin County for permanent management as open space soon after the effective date of this easement; 20.10. Termination of Rights and Obligations. A Party's rights and obligations under this Easement Deed terminate upon transfer of the Party's interest in the Easement Deed or the Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer; 20.11. motions. -The _ captions _in this instrument _ have _ been_ Inserted solely for__ convenience of reference and are not a part of this instrument and shall have no effect upon construction or interpretation; 20.12. Counterparts. The Parties may execute this instrument in two or more counterparts, which shall, in the aggregate, be signed by all the Parties; each counterpart shall be deemed an original instrument as against any Party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling; 20.13. Merger. Unless the Parties expressly state that they intend a merger of estates or interests to occur, no merger shall be deemed to have occurred hereunder or under ally document executed in the future affecting this Easement Deed. 15 �� 510269 �I �I II II I II I II IIIIIII IIII I II �I II� 05/18/2005Page: 16 f 01:47 SILVIR DAVIS PITKIN COUNTY CO R 0.00 D 0.00 20.14. IN WITNESS WHEREOF, Grantor and the Trust have executed this Deed of Conservation Easement as of the date first written above. GRANTOR Goldsmith Family Trust, Dated October 24, 1991 A Colorado Estate Planning Trust By: Cynthia Goldsmith ,,, - '.,_..- Title: STATE OF COLORADO ) COUNTY OF GARFIELD ) The foregoing instrument was acknowledged before me this {j`� day of �)iCA_y 2005, by (� jt -I% -<o. r?.31,��e:�.T;`�t-� as _"";t�, --t,c� of a 7 a�^yi'T'.+� �.%..: i . i^f.ri �Lvf� a9 Grantor. i ! J WITNESS my hand and official seal. [SEAL] ESTATE E FUSARO Y PUBLIC COLORADO MY Commission Expires 11l17/oB Notary POlic L - My commission expires: 16 16 510269 AACCEPTED by SPEN VALLEY RAND TRUST, I1111111111111111111111111111111111111111111111111111110 05/SS020050001gA77 a Colorado nonprofit corporation, SILVIR DAVIS By:— Shannon Meyef Associate DWctor STATE OF COLORADO ) ) SS. COUNTY OF GARFIELD ) Theforegoing instrument was acknowledged before me this day of 1 "� c 2005, by Shannon Meyer as Associate Director of ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation. WITNESS my hand and official seal. [SEAL] MMYCOmn's,onlExpe� FUSAROPUBLICOLORADO 11/17/08 Notary�ic My commission expires:`' > is 17 EXHIBIT A Legal Description of Property Broker Lode Mining Claim USMS # 6147 51©269 IIIIIIVIIIIIIIIIVIII(III(IIIIIIILIIIIIIIIIIIIII(III050/1825 01:4 0 0 0 18 ff VIII VIII IIIIII VIII (III (IIIIII illll III IIIIII III (III 0Page: 195/188//20005r01 g47 SILVIA DAVIS PITKIN COUNTY CO R 0.00 D 0.00 EXHIBIT B Baseline Documentation Summary, Inventory of Relevant Features of Property The primary purpose of this conservation easement on the Broker Lode is to preserve, in perpetuity, the following conservation elements: ♦ Native plant communities. The Property exists in a relatively undisturbed state. The dominant plant community can best be characterized as a Gambel Oak - Mountain - mahogany / Geyer's Sedge Shrubland. This association is characterized by a moderately dense to dense thicket of tall deciduous shrubs 2-5 m tall. Due to the unstable, eroding soils the shrub canopy is patchy and relatively open. Other shrubs occur throughout including mountain big sage, Saskatoon serviceberry, chokecherry, antelope bitterbrush, and mountain snowberry. Trees (Douglas fir, pinon pine, Utah juniper) are rare on the property. This plant association is ranked G3/S3 by CNHPI. • Wildlife Habitat. The protection of this property, will ensure the integrity of important habitat for a specialized suite of wildlife. The Brker Lode lies within the core of one of the most critical bighorn sheep habitat areas in the entire Crystal River watershed. The geology, slope, aspect, elevation, and vegetation combine to provide excellent winter range where sheep concentrate in large numbers throughout the winter. In addition, the Property is centrally located within a bighorn production area that is essential to the persistence of the Crystal Valley bighorn sheep population. The protection of the Broker Lode maintains the connectedness of this herd's northern and southern home range. The Property is within important elk winter range, severe winter range, and an important winter concentration area. The Red Blowout area provides special habitat features such as cliffs and talus required by wildlife species such as bushy -tailed woodrats, canyon wrens, golden eagles, mountain lions, rock squirrels, rock wren, Townsend's big -eared bat, turkey vultures, Uinta chipmunks, Violet -green swallows, and white -throated swifts. Townsend's big -eared bat is considered imperiled or very rare in Colorado by the Colorado Natural Heritage Program and is listed as a Species of Concern by the State of Colorado. • Scenic and Open Space. Protection of this property helps to preserve the rural nature of the area as well as a scenic viewshed. The Broker Lode is within the viewshed of Avalanche Creek Road which is a very popular summer recreation portal to the Avalanche campground, the Avalanche Creek Trail, and the Maroon Bells-Snowmass Wilderness Area. In addition, the Broker Lode is an "inholding" property completely surrounded by public lands administered by the White River National Forest. Conservation of this property will remove the threat of development that would tremendously impact surrounding wild lands. 19 (�