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HomeMy WebLinkAboutpitco.ost.emma.consdeed.444464 cr; c:--J \2 G (\ ~~ . . ORRO OF CONSRRV A nON RA SRMF.NT NOTICE: THIS PROPERTY HAS BEEN ACQUIRED IN PART WITH A GRANT FROM THE STATE BOARD OF THE GREAT OUTDOORS COLORADO TRUST FUND ("GRANT"). THIS DEED CONTAINS RESTRICTIONS ON THE USE AND DEVELOPMENT OF THE PROPERTY WHICH ARE INTENDED TO PROTECT ITS OPEN SPACE VALUES. THE ST ATE BOARD OF THE GREAT OUTDOORS COLORADO TRUST FUND HAS FOUND THAT THE ADOPTION OF THESE DEED RESTRICTIONS IS IN THE PUBLIC INTEREST. THIS DEED OF CONSERVATION EASEMENT (the "Conservation Easement") is made and entered into this _ day of June, 2000 between the Trust for Public Land, a nonprofit corporation ("Grantor") and the Roaring Fork Conservancy, a nonprofit corporation (the "Grantee"). RRCTTAT.S A. Grantor is the record owner of that certain real property in Pitkin County, Colorado, consisting of 64.7 acres of vacant land comprised of the 58 acre Parcel A and 6.7 acre Parcel B, which are more particularly described on Exhibit "A" attached hereto and made a part hereof by this reference, and which are referred to herein as the "Property". Grantor intends to convey the Property to Pitkin County following the grant of this Conservation Easement. B. The Property contains critical wildlife habitat, elk and deer migration corridors, excellent quality aquatic habitat and wetland and riparian areas, and also contains open space, agricultural, 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"). C. Preservation of these Conservation Values will yield substantial public benefit. D. The Property contains approximately 64.7 acres, a portion of which remains in agricultural use and a portion of which is in a substantially undisturbed and natural state, to be documented in an inventory of the Property's Conservation Values to be prepared as soon as weather and conditions permit following the conveyance of this Deed, but no later than September 30,2000, which inventory will be kept on file at the offices of the Grantee. E. 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 Conservation Values within and upon the Property, by encumbering the Property in its entirety with a Conservation Easement for the use and benefit of Grantee, pursuant to the provisions of Section 38-30.5-101, ct seq., Colorado Revised Statutes, which provides for maintenance of these Conservation Values by the continuation of land use patterns, including, without limitation, farming and passive recreational uses which do not significantly impair or interfere with those values. 11111111111I 1111111111111111111111111111111111111111111 44448406/22/2000 03:19P DEED CON DAVIS SILVI 1 of 21 R 10!.00 D 0.00 N 0.00 PITKIN COUNTY CO . . F. Grantee is a "qualified conservation organization" as defined by the Internal Revenue Code. G. 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 right to preserve and protect the Conservation Values of the Property in perpetuity. H. 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. CONVRVANCF. NOW, THEREFORE, for and in consideration of the facts recited above and for the purchase price of $10 and of the mutual covenants, terms, conditions, and restrictions 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, ct scq., Colorado Revised Statutes (the "Conservation Easement"), over, across and upon 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. Pllrpose. It is the essential purpose of this Conservation Easement to preserve and protect, in perpetuity, Conservation Values of the Property, including the Property's natural, ecological, wildlife habitat, scenic, historic, open space, agricultural and aesthetic features and to prevent any use of the Property that will significantly impair or interfere with its Conservation Values. In furtherance of the foregoing objective, this Conservation Easement is intended to establish permitted uses that are consistent with the purposes of the Conservation Easement, and to restrict the level of development and human activity in perpetuity. 2. nr"ntee's Affirm"tive Rifhts. To accomplish the purposes of this Conservation Easement, the following affirmative rights are hereby granted to Grantee: (A) To identify, preserve and protect in perpetuity, and in the event of their degradation or destruction, to compel the restoration of, the natural, ecological, wildlife, open space, historic and scenic features and other Conservation Values of the Property. In the event such restoration is required, the standard of 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 Documentation (defined below), prior to their degradation or destruction. 111111I1111I1111I111111111111111I11111111I1111111111111 44441408/22/2000 03:19P DEED CON DAVIS SILVI 2 of 21 R 10!.00 D 0.00 N 0.00 PITKIN COUNTY CO 2 o - u -- ->>- :::=..JI- -_z =Vl=> -.,,8 ~- _>z _CE_ _c>< =.... _z.. _0"" _u -lSl -0'" -.... -...... =c _ Z =lL _CIl'" -..... iiiiipjQ -lSl !!!!!Qo ~cgC5) -..... _N' =......111 -"'.. -"''' .... ==1"" - .. -"'N =... -....... -"'0 ~... -...... . . (B) To enter upon the Property as necessary to exercise the rights 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, unless Grantor agrees in writing to waive the requirement for a specified time and for a specified use. 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 23 of this document. (D) To recommend enhancement measures for the Property, or measures which would enhance the habitat, stream, wetlands or riparian viability or other natural features of the Property and to enter upon the properly with Grantor's permission to perform such restoration at its own expense at times which will not unreasonably interfere with the uses being made of the Property. 3. F ,<ement T1or.l1mentMion. A collection of baseline data on the Property and its resources (the "Baseline Documentation") shall be prepared by the Grantee as soon as practicable following conveyance of this Conservation Easement to Grantee. The Baseline Documentation shall be the property of and shall be deemed owned by the Grantee; however, before the Baseline Documentation becomes effective, the Baseline Documentation must be jointly approved by Grantor and Grantee, evidenced by the parties executing a signed statement attaching the approved Baseline Documentation report. The Grantor hereby grants Grantee or Grantee's agent(s) access to the portions of the Property necessary in order to prepare the Baseline Documentation. The data and explanatory text, photographs and maps to be assembled in the Baseline Documentation is agreed by the parties hereto to provide an accurate representation of the Property at the time of this grant, notwithstanding the fact that the Baseline Documentation will be prepared after the effective date of this grant, and the parties acknowledge that the Baseline Documentation will serve as an objecti ve information baseline for monitoring compliance with the terms of this Conservation Easement. Grantee shall bear the expense of the preparation of the Baseline Documentation, but Grantor's successor, Pitkin County, has agreed to provide staff technical assistance for development of the baseline documentation. The parties agree to complete the Baseline Documentation by September 30, 2000. The parties agree that, in the event a controversy arises with respect to the nature and extent 3 ~ o - U -... ->>- -........ -...20 ="'5 _",u =... _>20 _a:... _0>< -.... ==Z'" _0'" Us> _0" -.... -..... ;;;c;z =... iiiiii~~ _:3'- _ 0 -.. !!!!!!!QQ -.... _N' =.....10 _N.. _N'" ;a", S> -..,.c:::;. =... -~... -"'D ... -...... . . 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. f'onsistent TTses. The following uses and practices, though not an exhaustive recital of consistent uses and practices, are consistent with this Conservation Easement when carried 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, ponds, streams and irrigation ditches and agricultural outbuildings, such as a livestock or hay barns, tool sheds, and greenhouses, subject to the prior written approval of the Grantee, such approval to be based upon a determination by Grantee that the proposed location and installation, repair and maintenance of water wells, irrigation systems, ponds, streams and irrigation ditches and agricultural outbuildings will not diminish or impair the Conservation Values of the Property, or is otherwise consistent with this Conservation Easement, and such approval shall not be unreasonably withheld. (B) The installation, repair and maintenance of buildings used for public interpretation and education regarding the conservation values of the Property, subject to the prior written approval of the Grantee, such approval to be based upon a determination by Grantee that the proposed location and installation, repair and maintenance of buildings used for public interpretation and education regarding the conservation values of the Property will not diminish or impair the Conservation Values of the Property, or is otherwise consistent with this Conservation Easement, and such approval shall not be unreasonably withheld. (C) The taking of such reasonable steps as are necessary to control erosion to prevent sedimentation of streams or ponds on the Property. (D) The installation, repair and maintenance of fencing consistent in height and type of construction with Colorado Division of Wildlife standards designed to prevent interference with wildlife. (E) Such cutting and removal of dead, dying or diseased timber or brush as may be reasonably necessary for fire 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 circumstances, Grantor shall obtain the prior consent of Grantee for any substantial level of such activity, which consent will not be unreasonably withheld. (F) The pasturing, grazing, feeding and care of domestic animals, provided, however, that such livestock shall be excluded by fencing or other suitable means from 4 a -u -... ~>>- -....1- -...z -",::> - a -",u !!!!! ... _>z _a:... :=:o~ _z'" _aD.. _u -'" -e'" - . -'" =0 _ Z =D.. -"'''' -"'" ~';';Q -'" !!!!! Q CI !!!!!QQ -"'''' _N' =.......1(1 _N'" _N- -..... =ZIX - - -"'N =a1 -...... -::0 -..... . . riparian and wetland areas. (G) Passive, non-motorized (except as provided herein), non-commercial (except as provided herein) uses, including hiking, fishing and cross-country skiing, all in accordance with standards intended to assure non-interference with the critical wildlife. riparian, wetland and river habitat; and including development of new trails for such uses either by Grantee in conformance with the public access rights granted by this Conservation Easement or by Grantor (subject to the prior written approval of the Grantee, such approval to be based upon a determination by Grantee that the location of any trail will not substantially diminish or impair the Conservation Values of the Property, or is otherwise consistent with this Conservation Easement, and such approval shall not be unreasonably withheld). (H) Farming and ranching (including community or market gardens, plant nursery, composting, dirt screening, and the cultivation of alfalfa and other grasses customarily planted in the area); plowing and reseeding in accordance with good farming practices; the use of agricultural motorized vehicles; the construction of improvements reasonably necessary for such agricultural uses as described in subparagraph 4(A), above, and taking the agricultural portion of the Property out of irrigation, so long as noxious weed control methods are instituted, native grasses and plants are used to revegetate the formerly irrigated fields, and other prudent practices are adopted to prevent the deterioration of the Property once irrigation is terminated. <n Performance of any restoration or improvement measures for the habitat or natural features of the Property as recommended and/or approved by Grantee, including, but not limited to, the construction or modification of a wildlife underpass or overpass across Colorado State Highway 82. 5. Pmhihjten TTses. 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 other Conservation Values, except as otherwise permitted in this Conservation Easement. (B) The Development of any 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 nBn), except as permitted in this Conservation Easement or as requested by Grantor (subject to the prior written approval of the Grantee, such approval to be based upon a determination by Grantee that the construction of and proposed location of any Structure, Development, or road will not diminish or impair the Conservation Values of the Property, or is otherwise consistent with this Conservation Easement, and such approval shall not be unreasonably withheld). The prohibition set forth in this 5 o - u -... !!!!!>)- =~~ -...::> -0 _...u =... _>z _a:.. _c'" =t- _z.. _OlL _u -... -W'" - . -... =c _ Z =lL -...... -...... iiiiii.;t.g -... - c =1... -...... _N. =......1In _N... _N... -' =;a: -... -.N ==,... -.0 !!!!... -...... . . 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 adopt the same definitions of "Development" and "Structure" as currently exists in the Pitkin County Land Use Code. No portion of the Property shall be paved or otherwise covered with concrete, asphalt, or any other paving material, nor shall any road or trail be constructed without the advance written permission of Grantee. Grantee shall give such permission within a reasonable time, unless Grantee determines that the proposed paving or covering of the soil, or the location of any road or trail, will substantially diminish or impair the Conservation Values of the Property or is otherwise inconsistent with this Deed, and such permission shall not be unreasonably withheld. (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 as permitted pursuant to paragraph 4 of this Conservation Easement. Domestic livestock otherwise permi tted pursuant to paragraph 4{H) shall not be permitted to drink or graze within wetland or riparian areas as depicted or noted in the Baseline Documentation. (E) The exploration for or extraction of minerals, oil, gas, or other hydrocarbons, soils, sands, gravel, or other materials (but not including water) on or below the surface of the Property. (F) The dumping or other disposal of refuse, garbage, or other unsightly, hazardous or offensi ve material. (G) The use of motorized vehicles except as may be necessary in conjunction with farming and ranching, or land management consistent with this Conservation Easement or emergency vehicles. (H) The operation of a commercial feed lot, or any other commercial or industrial used not specifically permitted herein (I) Subdivision of any portion of either Parcel A or Parcel B, which together comprise the Property (J) Signallf or Rillho"rns. No commercial signs, billboards, awnings, or advertisements shall be displayed or placed on the Property, except for appropriate and customary ranch or pasture identification signs, "for sale" or "for lease" signs alerting the public to the availability of the Property for purchase or lease, "no trespassing" signs, signs regarding the pri vate leasing of the Property for hunting, fishing or other low impact recreational uses, signs informing the public of the status of ownership, and other signs specifically permitted herein. No signs shall 6 . . materially adversely affect the Conservation Values of the Property. 6. r1r::mtp.f": AppT()v~l nf TTnli~tP:ci hllt rnn~i~tp.nt TJ~p.~ ~nrl Prn~ti('p..;:' Nnt;r:p.. 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: Roaring Fork Conservancy P.O. Box 323 Basalt, CO 81621 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 the 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 can 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: The Trust for Public Land 418 Montezuma Avenue Santa Fe, NM 87501 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 identified 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 Grantor disagrees with a 7 o - ... -.. ->~ -........ -..z -<II::> !!!!! 0 _<II'" =.. _>z _CE" _a >< -.... -z.. -oa. -... !!!!! .. _a.. -.... ==l!l" _ z =lL _CIl" -..... --~Q -.. _ a -.. !!!!!QS -"''' _N' -...... -N" -N" -.... ==:8m: - .. -"'N ==,... =;0 ==...,... . . 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. Any notice required to be given to the State Board of the Great Outdoors Colorado Trust Fund shall be addressed to: Executive Director State Board of the Great Outdoors Colorado Trust Fund 1600 Broadway, Suite 1650 Denver, CO 80202 Or to such other address as the Board shall from time to time designate by written notice to the Grantor and Grantee. 7. l'osts ann T iahilities. Grantor, Grantor'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 the Property, including the maintenance of adequate comprehensi ve general liability insurance coverage. Grantor shall add Grantee as an additional insured to such insurance coverage. Grantor shall keep the Property free of any liens arising out of any work performed for, materials furnished to, or obligations incurred by Grantor. 8. 'f"xes "nn A <sessmeTlts. 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, except any taxes 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, except any tax or assessment on the Conservation Easement granted by this document, and does indemnify the 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 rear 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 Denver or the maximum rate allowed by law. 9. Water Rights. Grantor shall retain and reserve the right to use water rights listed on 8 o - u -o. !!!!!! > ,... =~!E -",,,, - 0 -",u !!!!! o. _>z _a.. -"'.. =.... _zo. _OIL _u -... -",... -.... -...... =c _ Z =IL -...... -...... iiiii~Q -... _ c -... !!!!!!SQ -"'''' _N' =.....11') _N'" _N... ..... =CDa: __9.... -"N =... -..... -....0 !!!!! .. -..... . . Exhibit C, to maintain and improve the Conservation Values of the Property, including, but not limited to, irrigating the historically irrigated agricultural lands protected by this Conservation Easement, and shall not transfer, encumber, lease, sell or otherwise separate water rights, without the prior approval of Grantee; and should Grantee determine that any such transfer will not substantially diminish or impair the Conservation Values of the Property, is justified by technological improvements in irrigation efficiency, or is otherwise consistent with this Conservation Easement, such approval shall not be unreasonably withheld. Grantor agrees that any separation of water rights from the Property allowed by the Grantee pursuant to this paragraph may not later be alleged to be grounds for extinguishment of the Conservation Easement pursuant to paragraph 17. 10. Pllhlic Acce... Public, non-commercial access to the Property is hereby granted by Grantor to the public as follows; perpetual public fishing access to the Roaring Fork River and limited access granted for scientific and educational purposes, as described below. Grantor and Grantee may mutually agree to limit the public access established in perpetuity by the terms of this Conservation Easement at certain times of year, such as elk or deer calving, fawning or migration times, in accordance with recommendations of a wildlife biologist familiar with the Property, and may further limit such access by reasonable rules and regulations designed to preserve the Conservation Values of the property. The parties hereto shall revisit from time to time the nature and extent of the public access created by this Conservation Easement to assure that it does not adversely affect the Conservation Values of the Conservation Easement. If such values are adversely affected, such public access may be relocated, restricted or closed, if determined necessary to preserve the Conservation Values. Grantor agrees it will accommodate requests by the Grantee or other conservation organizations for access to the Property by local schools to study its natural ecology, and to monitor water quality, and to learn about conservation and preservation techniques. 11. M "no gement Pion. The parties agree that a land stewardship and management plan for the property shall be prepared by and acceptable to Grantor and Grantee. The first management plan shall be prepared and approved by March 31, 2001 and shall be updated every five (5) years. Permitted uses of the Property shall be addressed in the management plan. 12. Resirlll"l FstMe. 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. 13. Sllhseqllent Trnnsfers Grantor agrees to incorporate the terms of this Conservation 9 o - u -... !!!!!>>- _.....~ -HZ -",,,, - 0 -",u =... _>Z _a:H _0>< = ~ _Z'" -8a. !!!!!", -0'" -",. _1U'" =0 _ Z =L _"'''' -..", iiiiii.;jcsi -'" ~l5Ja ~QC5) -"'''' _N. =.....an _N'" _N" "- ==Z" -.. -....N =... -....... -....0 !!!!! .... -....'" . . 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; provided, however, that no such notice of transfer need be made with respect to the initial transfer to Pitkin County. 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. 14. Hnlrl Hormless. To the extent permitted by law, Grantor shall hold harmless, indemnify and defend Grantee, its 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, 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 any hazardous or toxic substance that 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 exercise physical or managerial control of the day to day operations of the Property, or of any of the Grantor's activities on the Property, or otherwise become an operator with o respect to the Property within the meaning of the Comprehensive Environmental Response, _ u 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...;::l:> -UlO acknowledges that neither shall this Conservation Easement make the Grantee an owner or ;;;;;;;UI u responsible party in regard to the Property pursuant to such laws. ...; is _a:>< _at- =ZL "'8... !!!!! ... =racsi -'" =az -...... _GIS ~~s -", ..sa -:!Ul -.... _N'" =......i5J _No< -~lIt: ==:... - N -... =.a. iiiii:: 0 ~lIt'f5J -..... 15. A menrlment 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 will 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. 10 . . 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 applicable laws; and provided, further, that the prior written approval of the State Board of the Great Outdoors Colorado Trust Fund ("the Board) shall be required. 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, and Eagle 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. 16. Fxtingl1ishment. If circumstances arise in the future such as render the purpose of this Easement impossible to accomplish, this Easement can only be terminated or extinguished, whether in whole or in part, by judicial proceedings in a court of competent jurisdiction. Each party shall promptly notify the other when it first learns of such circumstances, and shall, in addition, notify the Board of such circumstances. (A) The amount of the proceeds to which Grantee 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 paragraph 17 below. (B) In the event of condemnation or termination, the Board shall be entitled to receive that portion of the net proceeds of condemnation or sale of the Property attributable to the Conservation Easement which is equal to a fraction, the numerator of which is the Board's Grant and the denominator of which is the fair market value of this Easement at the time this Easement is granted. (C) The parties acknowledge that the fair market value of this Easement has not been established at this time. Therefore, the parties hereto agree that in the event of condemnation, extinguishment, or termination of all or a portion of this Easement, the parties shall jointly commission and pay for an appraisal. Such appraisal shall determine the following four values: 1) the full fair market value of the unencumbered Property at the time of this Easement; 2) the fair market value of this Easement at the time of this Easement; 3) the full fair market value of the unencumbered Property at the time of condemnation or termination; and 4) the fair market value of this Easement at the time of condemnation or termination. 17. Prnr.e",ci.. This Easement constitutes a real property interest immediately vested in Grantee, which the parties stipulate to have a fair market value determined by multiplying the then current fair market value of the Property unencumbered by the Easement (minus any increase in value after the date of this Easement attributable to improvements) by the ratio of the 11 o u iiiiii....)- ->0- -...z -..::0 !!!!!tnO - u _CII =...z ->.. _a: 0< _DO- - .. -ZIL -0 -u... ~... _D' ~!!l'" =!lz - =a..m -...... -.. . -..Q -... iiii50 -...... !!!!!!Q$ -.... _N'" =.....& =~.. =UiGlt iiiiiQN -.. =Ia~ -"D -.. !!!!!!.. .... -.... Cl u iiiiiiii..... ->.. ==-'Z =:;;5 - u -", !!!!!....z (B) T iher"1 f'onstnl"tinn. Any general rule of construction to the contrary not -g E withstanding, this Easement shall be liberally construed in favor of the grant to effect the purpose = z: a: of this Easement and the policy and purpose ofC.R.S. ~38-30.5-l01 et seq. If any provision in -81ll this instrument is found to be ambiguous, an interpretation consistent with the purpose of this =Iil Q Easement that would render the provision valid shall be favored over any interpretation that _l!l z: would render it invalid. =lli 2l -.. . -..15) -... iiiiisO -...... !!!!!QQ -.... _"'WI =......m -"'.. -'" -'''' =1... -", -... =ca.... -"'0 -... !!!!!....N -..... . . value of the Easement at the time of the creation of this Easement to the value of the Property, without deduction for the value of the Easement, at the time of this Easement. The values at the time of this Easement shall be those values used to calculate the deduction for federal income tax purposes allowable by reason of this grant, pursuant to Section l70(h) of the Internal Revenue Code of 1986, as amended. For the purposes of this paragraph, the ratio of the value of the Easement to the value of the Property unencumbered by the Easement shall remain constant. 18. f'onnemnMinn. If the 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 this Easement and/or applicable law. The Board shall be entitled to compensation from Grantee in an amount as determined in accordance with paragraph 16 above. 19. A"ignment. This Easement is transferable, but Grantee 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) approved as a transferee by the State Board of the Great Outdoors Colorado Trust Fund. As a condition of such transfer, Grantee shall require that the conservation purposes that this Easement is intended to advance continue to be carried out. The Board shall have the right to require Grantee to assign its rights and obligations under this Easement to a different organization if Grantee ceases to exist or for any reason fails or refuses to enforce the_terms and provisions of this Easement. 20. Re"orning. Grantee shall record this instrument in timely fashion in the official records of each county in which the Property is situated, and may re-record it at any time as may be required to preserve its rights in this Easement. 21. np:n~T"~l Prnvjt::;()n~. (A) f'nntrnlling T "w The interpretation and performance of this Easement shall be governed by the laws of the State of Colorado. (C) Sever"hility If any provision of this Easement, or the application thereof to any person or circumstance, is found to be invalid, the remainder of the provisions of this Easement, or the application of such provision to persons or circumstances other than those as to which it is found to be invalid, as the case may be, shall not be affected thereby. 12 . . (D) Fntire Agreement. This instrument sets forth the entire agreement of the parties with respect to the Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Easement, all of which are merged herein. (E) No Forfeitllre. Nothing contained herein will result in a forfeiture or reversion of Grantor's title in any respect. (F) Toint Ohlif"tion, The obligations imposed by this Easement upon Grantors shall be joint and several. (G) Non-MeJ:g~r. No merger shall be deemed to have occurred hereunder or under any documents executed in the future affecting this Deed of Conservation Easement, unless the parties expressly state that they intend a merger of estates or interests to occur and the parties have also obtained the prior written consent of the Board approving such merger of estates or interests. (H) '<:Il~~e<<or'. The covenants, terms, conditions, and restrictions of this Easement shall be binding upon, and inure to the benefit of, the parties hereto and their respective personal representati ves, heirs, successors, and assigns and shall continue as a servitude running in perpetuity with the Property. (I) Termin"tioTI of Rights "nrl OhligHtions. A party's rights and obligations under this Easement terminate upon transfer of the party's interest in the Easement or Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer. (J) r"ptinns. 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. (K) Termin"tion of the Ro"rrl. In the event that Article XXVII of the Colorado Constitution, which established the State Board of the Great Outdoor Colorado Trust Fund, is amended or repealed to terminate the Board or merge the Board into another entity, the rights and obligations of the Board hereunder shall be assigned to and assumed by such other entity as provided by law, but in the absence of such direction, by the Colorado Department of Natural Resources or its successor. 22. FnfClT'~emeTIt "TIrl W"iver Enforcement of the terms and prOVISions of this Conservation Easement shall be at the discretion of Grantee. Any forbearance on behalf of Grantee to exercise its rights hereunder in 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. 23. "Fnfnrrpmpnt of R;ght~. 13 o u iiiiiiii...... -,..>- -.....z ......::t _"'0 _ u -'" =t-IZ -,..... _a: >< _at- -... ==ZllL -gs !!!!!! '" -a. -"'''' -'" =az - =a..iISII _lJI'" -.... -..cg ~13a - -"'''' ~QQ -"" _Non =......Q _N'" -~D: ==:... - N -.,. =CD~ -.,.0 -.,. !!!!!cC"J -...... . . (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 (1O) 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 enforce 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 conveyance 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, the Grantee shall have the right to cause the restoration of that portion of the Property affected by such activity 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 with 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 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 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 14 '" u iiiii..,.. ->.... -.....:z ==:;;5 _ u -en !!!!....z ->.. _a: 0< _0.... - .. ==% A. -8m !!!!! 151 _0' -..... -... =az ~a..Q _G1151 -.... _aaQ -... iiiiimo -151151 ~mlSll _151' _N'" =......C5J =l:l'" -....'" =lS... - N -... =....... -"'0 -... !!!!!...... -...... .~,,~ was acknowledged before me this ~ day of HaI'J""{,H:. P(UIlJlilt ~f ~~ ~ ~Ja>'le; j . ~,..-.-........... .Iw '\'~ \I r ... 'Iii .,' L '.C"... ". .,' ,r ..... 't.,' /. , to. t~~ ,,< '\:'.~ ,.'. ..~. r' . .' >'g T~' ,7 y'" c. ' " .'.>f'" _:.,...::~/.., :. '": ", ": ' ;" .. '.J' U J \. \ ':.: .. \ ,. "', '.',..... of.. " .' ." ~ ", "" ',.. ,,0 ~ .' I"f It: ,. ~\. .,., '..... ..,1' J ....~...~... " . . responsibilities hereunder, except that liability for acts or omissions occurring prior to transfer shall survi ve transfer. 24. Rinrling Fffert. Rille Ag"inst Perpetnities. 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 respecti ve 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 day before the expiration of ninety (90) years from the date of this deed 25. TnterpretMion. 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 gi ven 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 each party and its counsel have reviewed and revised this Conservation Easement and that no rule of construction that ambiguities are to be resol ved 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. GRANTEE: RO~ONS~?NCY'~C::ORADO NONPROFIT CORPORATION By: . PAESIp:. STATE OF Colof<Wo ) COUNTYOF P.~h ) ss. ) foregoing instrument ,2000 by ~ Witness my hand and official seal. My commission expires: ;;z./I1!Ol- ~~ J~~ Notary Public 15 t. o u iiiiii... >- !!!!!>.... _....z =_=- _"'0 _"'U =...z ->.. _a:", _a.... = .. _ZIL _0 _u.. - .. -a, -..... -... =az - =..... -..... -.. . -..cst -... ~C5Ja -.... !!!!!!C5JC5l -.. ' _NIll =,St _N.. _N -....'" ='" -.... _ N ... =.... -"'0 -... ~..., -..... . . GRANTOR: -= T~R rzUC LAND, A NONPROFIT CORPORATION STATEOF A/E:U MEXt4) ) ss. COUNTY OF J1tfi7.l FE ) ,.,... The foregoing ins~ent was acknowledged befOre me this /9/ti day of vufliF ,2000by flY. IJM. , VICe: !fflIJJbv; 7l!L I /I-t.{ ST;=V1l I fA/)L/C 0,11), It {l4VI! ('6 j Cf;1.-!/lJNiI1J~!C ./w.?Cf,-r ~rpl r $M t WItness my hand and officIal seal. C{)f/ j,e.kIl dt 1tN.. cor(l~('tif;()I), I My commission expires: I Notary Public 1111111111111111111111111111111111111111111111111111111 44448406/22/2000 03:19P DEED CON DAVIS SILVI 18 of 21 R 10!.00 D 0.00 N 0.00 PITKIN COUNTY CO 16 . . EXHIBIT A (Property Description) Trimble Parcel A parcel of land in Pitkin County, Colorado more particularly described as Lot 2, ~OMAS.EMMA SUBDIV~SION EXEMPTI~~ according to~~ Plat thereof recorded J{l.-Zt~ , 2000, 10 Plat Book ~I at Page -=rL--. Thomas Parcel A parcel of land in tract 49, T8S, R87W of the 6" P.M., County of Eagle, State of Colorado and more particularly described as follows: Beginning at AP 8 Tract 49, which is rnonumented with a 1924 GLO Brass Cap; thence along the tract line AP 8 - AP 9 Tract 49, N 00 Deg.02'47' E 104.401 To The True Point Of Beginning; thence along the tract line AP 8 -AP 9 Tract 49, 00 Deg. 02147" E 213.731 to the South R.O.W. line of the State HighwaYi thence along the South line of the R.O.W. N 63 Deg. 27'60" E 237.28'; thence along the South R.Q.W. line on a curve to the right 458.56' ( Radius: 2805.00', Angle: 09 Deg. 22' Chord: 458.05'); thence along the South line of the R.O.W. N 72 Deg. 50' E 124.82'; thence S 00 Deg. 02'47" 527.04'; thence N 90 Deg. W 756.43' To The True Point Of Beginning COUNTY OF EAGLE STATE OF COLORADO 11111\1111\11111\11111\1\1111111111111111\ 1111\111\ ~'I 444484 06/22/2000 03:19P DEED CON DAVIS SIL 17 of 21 R 105.00 D 0.00 N 0.00 PITKIN COUNTY CO 17 . . EXHIBIT B (Pitkin County Land Use Code - See Attached) 111111I11111111111111111111111111111111111111111111 1111 444484 OS/22/2000 03:t9P DEED CON DAVIS SILVI 18 Df 21 R 10!.00 D 0.00 N 0,00 PITKIN COUNTY CO 18 . . EXHIBIT B to Conservation Easement Between Trust for Public Land and Roaring Fork Conservancy DEFINITIONS FROM PITKIN COUNTY LAND USE CODE 1. DEVELOPMENT means the carrying out of any building activity, the making of any material change in the use or appearance of any structure or land, or the subdividing of land into two (2) or more parcels. A. For the purposes of these regulations, the following activities or uses shall be taken to involve "development" I. A reconstruction or alteration of the size or building footprint of a structure. 2. A change in the intensity of use of land, such as the establishment of, or an increase or decrease in, the number of dwelling units or floor area. 3. Commencement of drilling, mining, or excavation on a parcel of land. 4. Total demolition or partial demolition of a structure. 5. Clearing of land, including clearing or removal of vegetation, and including any significant disturbance of vegetation or substrate (soil) manipulation. 6. Deposit of refuse, solid or liquid waste, or fill on a parcel of land. B. Development includes all other activity customarily associated with it. When appropriate to the context, "development" refers to the act of developing or to the result of the act of development. Reference to any specific operation is not intended to mean that the operation or activity, when part of other operations or activities, is not development. Reference to particular operations is not intended to limit the generality of this definition. C. The following shall not be considered development: 1. Fences and walls which comply with the DOW fence standard. 2. Fences and walls which are less than six feet (6-.J in height and are located: a. On parcels assessed as "agricultural" by the Assessor's Office, or 8 iiiii.... >- !!!!!!:> .... =;:::!i -"'8 !!!!!! '" =...z ->.. _a:,. _DO- ==z:L -8... !!!!!!", _D' -"'''' -'" =cz - =Lm -"'''' !!!!!~Q -... _"'D - -== !!!!!!~.; =.......51 _N~ _N _....co: =:... -N -.. =cac.. iiiii::: a !!!!!... .. _..~ I , . . . b. On parcels free of 1041 wildlife concerns, or c. Within an approved building envelope, or d. In areas of the County with site specific approvals or guidelines approved by the BOCC relative to fencing. 2. STRUCTURE means anything constructed, installed, or portable, which requires location on the ground. It includes yurts and tepees and movable buildings which can be used for housing, business, commercial, agricultural, or office purposes, either temporarily or permanently. "Structure" also includes roads, walkways, paths, fences, swimming pools, tennis courts, signs, sheds, and other accessory construction. "Structures" do not include fences or walls used as fences as provided in subsection C of the definition of "Development" within this section; poles, lines, cables, or other transmission or distribution facilities of public utilities; bus shelters less than two hundred (200) square feet in size. c:\home\viclQv\debbie\ostb\thomastrimblecxh.doc 1111111111111111I111111111111111111111111I111111I111111 444484 08/22/2000 03:18P DEED CON DAVIS SILVI 20 of 21 R 105.00 D 0.00 N 0.00 PITKIN COUNTY CO 2 I . . . . EXHIBIT C (Water Rights) 2.0 cfs in the Home Supply Ditch*, representing the entire interest of the Grantor therein, 1.0 cfs in the Cramer Ditch*, representing one-half of the rights of the Grantor therein divided equally among all priorities, and any and all other water rights appurtenant to and historically used for irrigation on the real property described as Lot 2, Thomas Emma subdivision Exemption, pitkin County, Colorado, and the real property in Eagle County, Colorado described in Exhibit A attached hereto, (collectively the "Property"), together with the interest of the Grantor in all ditches, ditch rights, water, water rights, water stock headgates, laterals and water structures, pumps, diversion structures and devices, and measuring devices on the Property of used in connection with the property appurtenant thereto, and together with all easemencs, rights-of-way, access rights, special use permits or any other permits pertaining to these water rights on the Property. The deed does not convey 1 cfs in the Cramer Ditch and appurtenant interests retained by Grantor's predecessor in interest for use on Lot 1 of the Thomas Emma Subdivision Exemption. 'priorities are reflected in Case 132, CA 3082, W-34l4, W-867, W-180l and CA 2811 in the Water Court in and for Water Division No.5, State of Colorado U~~~4'!~~g~~tllllll.lllllllllllllllll/ 1111111111111 21 0' 21 R 10!.:: g301:: NDEED CON DAVIS SILVI . 0.00 PITKIN COUNTy CO 19