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HomeMy WebLinkAboutC08-137 Emma Farms Deed of Conservation Easement in Gross- 200889/01 :&: w' 9/2008 ~H~~II~~~~~~~~~~h~u~hUN~~~h~~~~~~U~~U~~~u ~'~'f, NOTICE TO TITLE COMPANY; 'This Deed of Conservation Easement in gross requires a $100.00 fee be paid to Aspen Valley Land Trust or its successor organization by purchaser, transferee or recipient upon purchase of this Pro er or an Property or any lot located on this Pro er p ~' Y portion of this p ty, pursuant to Section 15 herein. DEED OF CONSERVATION EASEMENT IN GROSS EMMMA FARMS Eagle County, Colorado A CONSERVATION EASEMENT IN GROSS ("Easement" is granted by DEED ("Easement Deed") this 18~' day of December 2007, by EMMA ARMS, LLC and SW ENTERPRISES, LLC ("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"). The following exhibits are attached hereto: Exhibit A: Property Legal Description, Exhibit B: Survey of Property, Exhibit C: Baseline Documentation Summary, Exhibit D: Water Rights; RECITALS WHEREAS, Grantor is the sole owner in fee simple of approximately 58.025 acres of real property on Emma Road in Emma, Eagle County, State of Colorado, more particularly described in Exhibit A and depicted in Exhibit B (the "Property"), together with certain Water Rights, described in Exhibit D, attached hereto and made a part hereof (the "Property"). The term "Property" shall hereinafter be defined as the land and water rights combined, and the term "Water Rights" shall refer to the water rights alone; and WHEREAS, the Property possesses natural, scenic, open space (includin a and wildlife values (collectively, "Conservation Values") of importance to the Trust the people of Eagle and Pitkin Counties, and the people of the State of Colorado that are worthy of preservation; and WHEREAS, in particular, according to Section 170(h)(4)(A) of the Internal Revenue Code and Section 1.170A-14(d) of the Treasury Regulations, the conservation values of a qualified conservation contribution may be for one or more of the following: to preserve land for outdoor recreation by or education of the general public; to protect relatively natural habitat of fish, wildlife or plants; to preserve open space; and to preserve historically important land or structures. WHEREAS, the Conservation Values of the Property include Scenic, Relatively Natural Habitat and Open Space Values as further described below: • Relatively Natural Habitat [§ 1.170A-14(d)(3)]. The Property consists primarily of irrigated hay meadows, which provide a haven for open field-loving birds, insects, ungulates and small mammals, with small isolated pockets of native vegetation including Gambel oak shrublands and mountain sagebrush, all of which have special conservation status on the global and state level, as described in Exhibit C, attached hereto and incorporated herein ("Baseline Documentation Summary"). Rocky Mountain elk are found on the Property in late fall and early spring, and mule deer are found on the Property through much of the year. Golden eagles, red-tailed hawks, and American kestrels frequently hunt on the Property, and black bears, foxes, coyotes and long-tailed weasels are also seen on the Property. The Property is also within 600 feet of a large swath of public land managed by the Bureau of Land Management ("BLM") and is immediately adjacent to the 7,000-acre Crown Potential Conservation Area, designated by the Colorado Natural Heritage Program ("CNHP") as an area of critical environmental importance for its outstanding biodiversity. Conservation of this Property will help provide an open space buffer to the Crown, and enhance habitat connectivity for wildlife in the area. • Open Space [§ 1.170A-14(d)(4)]. The Property qualifies as open space because it will be preserved for the scenic enjoyment of the general public and will yield a significant public benefit. o Scenic Enjoyment. The Property adds to the scenic character of the local rural landscape in which it lies, contains a harmonious variety of shapes and textures, and provides a degree of openness, contrast and variety to the overall landscape. A large portion of the Property is visually accessible to the general public from Emma Road and Hooks Lane, both public roads in the area, and from recreational trails and nearby public lands, including the Arbaney Kittle Trail and the "Crown" - an large area managed by the BLM. The Property is part of a scenic corridor consisting largely of agricultural land and irrigated pastures that provides a rural and pastoral buffer between urban areas of Basalt and El Jebel and open space such as the Crown. In particular, the Property's irrigated pastures provide scenic relief and openness at the base of the scenic and undeveloped Crown hillside. The terms of the Easement do not permit a degree of intrusion or future development on the Property that would interfere with the essential scenic quality of the land. o Agriculture. The Property is part of a historically agricultural area that still retains much of its agricultural character. The Property is mostly irrigated and is adjacent to leased lands fur cattle grazing, which help maintain the agricultural 2 viability of the area. This use is compatible with other land use in the vicinity, as adjacent properties are also used for agricultural production. o Governmental Policies. The Eagle County Master Plan and its Guiding Policies, as set forth in Resolution 96-01, reiterate the 1981 Master Plan statement that "the environmental quality of Eagle County shall be protected" and includes policies to protect wildlife areas; maintain and enhance water quality and quantity; protect unique land forms; monitor and control air quality; and require development to be compatible with natural constraints of the land. Further, Resolution 2003-097 establishes that it is the policy of Eagle County to be dedicated to "preserving wildlife habitat, protecting working farms and ranches, conserving scenic landscapes and vistas, and protecting wetlands and floodplains" within and throughout Eagle County. The Eagle County Comprehensive Plan states that "(o)pen corridors between towns and community centers should be preserved" (3.2.4(d)) and that "Agricultural land uses should be retained to preserve Eagle County's historical heritage and scenic quality for the benefit of future generations" (3.3.5(j)); o Significant Public Benefit. The Property is located in an agricultural portion of Eagle County where there is a trend of intense development in the vicinity of the Property. The Property lies within one mile of El Jebel (Basalt West) and 3 miles from the 'Town of Basalt, both of which are undergoing intense residential and commercial development, making preservation of open space buffers between the two towns all the more important. Development of the Property would contribute to degradation of the scenic and natural character of the area, while its preservation will help retain these scenic characteristics. WHEREAS, conservation of the Property will increase the amount of conserved land in the Emma and "Crown" areas, which are currently identified by the Trust and the Colorado Natural Heritage Program ("CNHP") as a high priority for protection. The Trust currently protects 1,059 acres within 3 miles of the Property on the Rock Bottom Ranch, Clark Ranch, Crown Mountain Ranch, Happy Day Ranch, Grange Ranch and Brackett conservation easements, and the Property is very near to the Happy Day Ranch conservation easement in particular. The Property is also adjacent to a large swath of BLM land to its south, which is overlayed by the Crown Potential Conservation Area, described above; WHEREAS the Trust acknowledges and agrees that continued use of the land for agricultural production does not impair or interfere with the Conservation Values of the Property; 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; 3 WHEREAS, the Trust is a charitable organization as described in Section SO1(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code") and is apublicly-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; WHEREAS, Grantor acknowledges that this Easement Deed is intended to satisfy in part the requirement of the Eagle County Land Use Code for the creation by Grantor of common open space for the Emma Farms Planned Unit Development pursuant to the Development Plan Approval (the "PUD Agreement") between Grantor and the County of Eagle, State of Colorado, a governmental entity acting by and through its Board of County Commissioners ("Eagle County") recorded on or about the same date as the recording of this Easement Deed; 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: 1. Grant. Grantor hereby voluntarily and irrevocably grants and conveys to the Trust a perpetual Conservation Easement in gross (the "Easement"), pursuant to C.R.S. §§ 38-30.5-101 et seq., through the terms mutually agreed to in this Deed of Conservation Easement in gross ("Easement Deed"), consisting of the rights and restrictions enumerated herein, over and across the Property, to hold said F,asement unto the Trust and its successors and assigns forever. The Easement 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 the Easement are to assure that the Property will remain forever predominantly in its scenic and open space (including agricultural) condition, subject to the uses of the Property permitted hereunder, to protect and preserve the Conservation Values of the Property in perpetuity, to prevent any use of the Property that is not consistent 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. The primary purpose of this Easement is to protect the agricultural characteristics of the land and particularly its scenic views from Emma Road and other public right-of--ways. 4 3. Intent. Subject only to the Purposes set forth above and express prohibitions below, the intent of the Parties is to permit all uses of the Property that are consistent with the preservation and protection of the Property's Conservation Values as determined by the Trust 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 and relevant features of the Property has been prepared contemporaneously with this Easement Deed by Colorado Wildlife Sciences, LLC, a company familiar with conservation easements, the Property, and the environs, and is on file with the Parties. The Trust and Grantor have reviewed and approved the Baseline Documentation, as summarized in Exhibit C, herein ("Baseline Documentation Summary"), as an accurate representation of the condition of the Property at the time of this grant. The Parties agree that the Baseline Documentation is not intended to preclude the use of other evidence to establish the present condition of the Property should a controversy arise over its use. 5. Rights of the Trust. To accomplish the purposes of the Easement, 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 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 the Easement; 5.3. The right to prevent any activity on or use of the Property that is inconsistent with the purposes of the Easement, or with the preservation and protection of the Conservation Values of the Property, and the right to require the restoration of such areas or features of the Property that are damaged by any inconsistent activity or use; and 5.4. Any other rights that the Parties may approve consistent with the purposes of the Easement and the Conservation Values (i.e., habitat or other enhancement projects, right to identify conservation values of the property, or right to conduct scientific studies). 6. Prohibited and Permitted Uses. Grantor reserves to itself and to its personal representatives, heirs, successors, and assigns, all rights and obligations accruing from its ownership of the Property, including the right to engage in all uses of the Property not expressly prohibited herein that are consistent with the preservation and protection of the Conservation Values of the Property. Grantor is prohibited from any activity on or use of the Property inconsistent with the preservation and protection of the Conservation Values. Grantor shall notify or seek approval of the Trust in writing, as described in Sections 9 and 10, before exercising reserved rights or any rights that are not described here. Grantor has the burden to 5 prove that Grantor's proposed uses are consistent with the preservation and protection on the Conservation Values of the Property. The following uses and practices by Grantor, though not an exhaustive recital, are either consistent with and permitted, or inconsistent with and prohibited by this Easement Deed. Expressly permitted uses are to be conducted in a manner consistent with the preservation and protection of the Conservation Values of the Property, pursuant to Section 170(h)(3) of the Code, and C.R.S. § 38-30.5-102. Certain of these consistent uses and practices are identified as being subject to specified conditions, such as to the notice provision described in Section 9, or to the requirement of and procedures for prior approval by the Trust described in Section 10, or to both. Uses not described here as expressly permitted or prohibited are guided by Section 10 herein. 6.1. Building_Ri ts. Grantor shall not construct, improve, place, or replace any buildings, structures, mobile homes, greenhouses, horseback riding arenas, parking lots, or billboards on the Property, except as follows: A. Agricultural Structures. Grantor retains the right to construct, replace, expand, and maintain both existing and additional minor structures for agricultural purposes on the Property (such,as corrals, hay sheds or loafing sheds), provided all such structures are not used for residential purposes and comply with the regulations relating to size, bulk and use of Eagle County. 6.2. Agricultural Uses. Grantor retains the ri t to conduct a 1~ gricultural operations on the Property in a manner consistent with sound farming and range management practices, and to lease lands with appurtenant Water Rights for permitted agricultural purposes. Permitted agricultural operations include grazing and raising of livestock, raising crops, and all other agricultural activities not specifically prohibited herein that are consistent with protection of the long-term ecological and economic viability of the land. High-intensity agricultural uses and grazing on dry pasture lands shall be conducted in a manner consistent with sound management practices as determined by the Natural Resource Conservation Service ("NRCS") or its successor organization. The terms and conditions of this Easement Deed are intended to ensure that the Property remain available for agricultural or livestock production, or both, in accordance with Section 170(b)(1)(E)(iv) of the Code. Agricultural uses prohibited by this Easement include (a) commercial feed lots, defined as confined areas or facilities for purposes of extended feeding and finishing of large numbers of livestock for hire, (b) tree farms, and (c) sod farms. 6.3. Reversion to Wildlife Habitat. If, in the future, agricultural operations cease, Grantor agrees to reseed any heavily disturbed areas with appropriate native vegetation to prevent the spread of noxious weeds and to provide forage and habitat for wildlife. The Parties agree that agricultural operations may resume at any time thereafter; 6.4. Roads and Motor Vehicles. Grantor shall not pave or widen existing roadways, convey easements or rights-of--ways, or construct new roadways without the consent of the Trust, which consent shall be given in the Trust's sole discretion, except as permitted in previously 6 executed agreements and as required by the terms of development approvals granted by Eagle County or under condemnation proceedings pursuant to Section 13, herein, or as necessary for agricultural purposes; 6.5. Fencing. Grantor may replace existing fences or erect new fencing on the Property, or both, provided such fencing complies with then-current Colorado Division of Wildlife standards for fencing in a wildlife migration area, except as necessary for agricultural operations, and then in a manner which permits the free flow of wildlife as much as possible; 6.6. Mineral Rights. At the time of granting the Easement, Grantor owns, to the best of its knowledge, all of the mineral rights for the Property. Grantor's current and future ownership of any or all of the mineral rights appurtenant to the Property shall be subject to the following provisions: A. Subsurface Mineral Rights _ The exploration, development, mining or other extraction of minerals, coal, peat, sand, gravel, rock or soil is prohibited, except that Grantor may lease to a third party the right to explore for or extract oil and natural gas from below the surface of the Property; provided, however, that such activities occur only in a manner that is consistent with the meaning, provisions, and terms of Section 170(h) of the Code and Section 1.170A-14(g) of the Treasury Regulations; Grantor shall incorporate this Easement by reference and summarize the Property's Conservation Values in any and all future oil and gas leases, surface use agreements, or no-surface occupancy agreements that affect the Property or address mineral rights separated after the date of this Easement grant, which leases and agreements shall be subordinate to this Easement Deed. B. Surface Mineral Rights. Grantor shall not 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; 6.7. Subdivision. Grantor may not divide or subdivide (including de facto subdivision) the Property into two or more parcels of land without the approval of the Trust; 6.8. Trash. Grantor shall not dump, permanently accumulate, or dispose of trash, garbage, or other hazardous or unsightly refuse on the Property, except for agricultural by- products and vegetative matter produced or used on the Property; 6.9. Water Resources, 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 or destabilizes their natural banks or shorelines, or otherwise is inconsistent with the preservation and protection of the Conservation Values of the Property, except that Grantor retains the right to construct, maintain and improve agricultural ditches, stock ponds and other water features and 7 improvements without further permission from the Trust if such construction and maintenance is in compliance with local, state, and federal rules and regulations; 6.10. Commercial and Industrial Activities. Grantor shall not conduct industrial activity or any more than de minimis commercial recreational activity on the Property pursuant to Section 2031(c) of the Code; 6.11. Recreation. Passive, non-motorized recreational uses are permitted on the Property, including but not limited to, hiking, cross country skiing, horseback riding, mountain biking, hunting and fishing. Golf courses and other active, high-impact recreational amenities such as hard surface trails or riding arenas are prohibited on the Property; 6.12. Utilities and Communications Facilities. As necessary to the uses permitted in Subsection 6.1 and 6.2 and provided that the location and use of the following described amenities is consistent with preservation and protection of the scenic, wildlife and agricultural Conservation Values of the Property, Grantor may install, maintain and use on the Property the following: (a) communication facilities and appurtenant structures or equipment; (b) utility lines and substations; (c) water lines, pumps and wells; and (d) wind-powered electric generators, solar collectors, fuel cells, and other technology. Any impact from the installation and maintenance of such amenities to the Property or its Conservation Values shall be restored as closely as possible to the Property's original condition; 6.13. Hunting. Hunting and the leasing of hunting rights on the Property is permitted according to local laws and regulations at Grantor's discretion; 6.14. Water Ri ts. A. Water Rights Included. The Property includes all of Grantor's rights, title and interest in the Water Rights described in Exhibit D attached hereto and incorporated herein by reference. Grantor shall have the right to continue historic use of the Water Rights on the Property in order to protect and preserve the Property's Conservation Values. To this end Grantor shall have the right to improve, maintain, repair, relocate and reconstruct facilities related to the Water Rights (such as ditches, wells and reservoirs); B. Restrictions on Water Rights. The Water Rights may not: (i) be changed to or used for municipal, industrial, or commercial uses, as defined by Colorado law; (ii) be changed for use off of the Property; (iii) be sold, leased, or encumbered separately from the Property or legally separated from the Property; or (iv) have their points of diversion, or their type or place of use within the Property changed, except pursuant to a legally- recognized interruptible supply contract, fallowing agreement, emergency water loan, or similar agreement to temporarily increase instream flows in the Roaring Fork River. Water Rights may be used for other activities on the Property that are not prohibited by the terms of. this Easement Deed, after a written determination by the Trust that such changes are consistent with the preservation and protection of the Conservation Values, and do not create an intent to abandon; 8 C. Protection of Water Rights If Grantor fails to maintain the historic use of the Water Rights, or the Water Rights are otherwise subject to a threat of abandonment, the Trust shall have the right, but not the obligation, to (i) enter upon the Property and undertake any and all actions reasonably necessary to continue the use of the historic Water Rights, or (after 90 days written notice to Grantor,) to (ii) seek to change the Water Rights to another beneficial use approved by the Trust and permitted under this Easement Deed, or convey all or part of such rights to the Colorado Water Conservation Board or its successor organization for the specific purpose of increasing the flow in the Roaring Fork River; D. Effect of Loss. No loss of Water Rights through injury or abandonment, or conversion of the Water Rights as set forth above, shall be considered a severance of the title to the Water Rights from the Property for federal or state tax or other purposes, or as basis for extinguishment of this Easement. 7. 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. 8. Representations and Warranties. Grantor represents and warrants that, after reasonable investigation and to the best of its knowledge: 8.1. Except for substances and fuels customarily used or transported in connection with agricultural and construction activities, no substance defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise or threatening to human health or the environment exists or has been used or released on the Property; 8.2. There are not now any underground storage tanks located on the Property, and no underground storage tanks have been removed from the Property in a manner not in compliance with applicable laws, regulations, and requirements; 8.3. Grantor and the Property are in compliance with all federal, state, and local laws, regulations, and requirements applicable to the Property and its use and there are no existing, pending or threatened litigation in any way affecting, involving, or relating to the Property; 8.4. Grantor has good and sufficient title to the Property and has Lawful authority to grant and convey the Easement, that any mortgages or liens on the Property are subordinate to the terms of this Easement Deed, and that Grantor shall warrant and forever defend the title to the Easement against all and every person or persons lawfully claiming by, through or under Grantor, the whole or any part thereof, except for rights-of--way, easements, restrictions, covenants and mineral reservations of record. 9 9. Notice of Intention to Undertake Certain Permitted Actions. The purpose of requiring Grantor to notify the Trust before undertaking certain activities or uses, as identified in Section 6 or other sections, herein, is to afford the Trust an opportunity to update its records and, if approval is required, to ensure that the activities or uses in question are consistent with the terms of this Easement Deed. Grantor may shall also notice Trust and seek its approval for proposed activities or uses not specifically addressed herein that are not clearly consistent with the preservation and protection of the Property's Conservation Values. Whenever notice and the Trust's approval, as described in Section 10 below, are required, Grantor shall notify the Trust in writing not less than 60 days prior to the date Grantor intends to undertake the activity or use in question, unless this Easement Deed provides otherwise, and 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 terms of this Easement Deed and the preservation and protection of the Property's Conservation Values. Whenever notice is required without the Trust's approval, Grantor shall notify the Trust in writing not less than 30 days in advance of the proposed activity or use. 10. The Trust's Approval. Whenever this Easement Deed requires that Grantor obtain the Trust's approval of any activity on or use of the Property, such approval shall be given in the Trust's sole discretion, according to whether the Trust determines that such activity or use of the Property is consistent with the preservation and protection of the Property's Conservation Values.. Grantor has the burden to prove that Grantor's proposed uses are consistent with the preservation and protection of the Conservation Values of the Property. Where the Trust's approval is required, the Trust shall grant or withhold its approval in writing within 30 days of receipt of Grantor's written notice (as described in Section 9, above) of and request therefor. The Trust's approval may be withheld at the Trust's sole discretion if the Trust determines that the action as proposed would be inconsistent with the Conservation Values or the purposes or terms of this Easement or Easement Deed. The reason(s) for such a determination shall be set forth with specificity by the Trust in a written notice to Grantor. Where a modification of the proposed use or activity by Grantor would render the same consistent with the purposes of the Easement and the Conservation Values, the Trust may specify, in such written notice to Grantor, such modifications to render approval appropriate. 11. Trust's Remedies: Enforcement. The Trust shall have the right to prevent and correct or require correction of violations of the terms and purposes of this Easement or Easement Deed. if the Trust finds what it believes is a violation, or a threat of a violation, the Trust shall notify Grantor of the nature of the alleged violation. Upon receipt of this notice, Grantor shall immediately discontinue any activity that could increase or expand the alleged violation and shall either: (a) restore the Property within 60 days as is best possible to its condition prior to the violation in accordance with a plan approved by the Trust, or if immediate restoration is not possible, Grantor shall submit such plan to the Trust within 60 days; or (b) provide a wri±ten explanation to the Trust of the reason why the alleged violation should be permitted. If the Trust is not satisfied with Grantor's written explanation, the Parties agree to meet as soon as possible to resolve this difference. If a resolution of this difference cannot be achieved at the meeting, the Parties agree to attempt to resolve the dispute pursuant to Section 11.1 below. 10 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 to stop the activity, 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. The Trust may bring an action at law or in equity, ex parte as necessary, in a court of 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. The Trust's remedies described herein shall be in addition to all remedies now or hereafter existing at law or in equity, and shall include the right to recover damages for violation of the terms of this Easement Deed or injury to the Conservation Values including damages for the loss of scenic or environmental values. 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 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. 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 years from the date upon which the violation is discovered. All reasonable costs incurred by the Trust in enforcing the terms of this Easement Deed, including, without limitation, costs and expenses of pursuing legal action 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, unless a court finds that the Trust acted in bad faith in seeking enforcement thereof, in which case the court shall award to Grantor and the Trust shall pay, Grantor's reasonable costs of defending the action or claim. If Grantor ultimately prevails in a judicial enforcement action, the court shall award to Grantor and the Trust shall pay, Grantor's reasonable costs incurred in asserting or defending the action or claim pursuant to Colorado Rules of Civil Procedure 54(d). 11.1. Mediation. If a dispute arises between the Parties concerning the consistency of any proposed use or activity with the terms 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 10 days of the receipt of such request, the Parties shall select a trained and impartial mediator with experience in easements and other land preservation tools. If the Parties are unable to agree on a mediator, then the Parties shall each select a mediator with experience in conservation easements and other land preservation tools, and those two mediators shall select a mediator who shall alone mediate the dispute. Mediation shall then proceed in accordance with the following guidelines: A. Pu ose. The purpose of the mediation is to: (i) promote discussion between the Parties; (ii) assist the Parties to develop and exchange pertinent information concerning the issues in dispute; and (iii) assist the Parties to develop proposals which will enable them to arrive at a mutually acceptable resolution of the controversy. The mediation is 11 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, 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; D. Time Period. Neither Party shall be obligated to continue the mediation process beyond a period of 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. Costs, Liabilities, Taxes and Environmental Compliance 12.1. Costs, Le ag 1 Requirements and Liabilities. Grantor retains all responsibilities and obligations 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 shall keep the Property free of any liens arising out of any work performed for, materials furnished to, or obligations incurred by Grantor. Nothing in this Easement Deed shall be construed or interpreted as prohibiting Grantor from obtaining loans secured by deeds of trust encumbering the Property, provided any such deeds of trust are subordinate to this Easement Deed, and shall encumber the entire Property; 12.2. _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; 12.3. Hold Harmless. Grantar shall hold harmless, indemnify and defend the Trust and its members, directors, officers, employees, agents, and contractors and the heirs, personal representatives, successors, and assigns of each of them (collectively, the "Trust Parties") from and against all liabilities, including, withaut limitation, court awarded third-party attorneys' fees, arising from or in any way connected with: (a) injury to or the death of any person, or physical 12 damage to any property, resulting from any act, omission, condition, or other matter related to or occumng on or about the Property, regardless of cause, unless due solely to the negligence of any of the Trust Parties; (b) the violation or alleged violation of, or other failure to comply with, any state, federal, or local law, regulation, or requirement, including, without limitation, CERCLA, by any person other than any of the Trust Parties, in any way affecting, involving, or relating to the Property; (c) the presence or release of hazardous or toxic substances in, on, from, or under 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 Trust Parties; and (d) payment of taxes imposed upon or incurred by the Property as a result of this Easement, including property taxes and the sale of income tax credits acquired as a result of this Easement (e) tax benefits or consequences of any kind which result or do not result from entering into this Easement Deed;, and (f) the obligations, covenants, representations, and warranties described herein; 12.4. 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 withYn four 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; 12.5. 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 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 not authorized to access the Property, and is responsible for any third parties, including guests or invitees, authorized by Grantor to access the Property. 13. Extinguishment and Condemnation. 13.1. Extinguishment. The Parties agree that any changes in the economic viability of the uses permitted or prohibited by this Easement Deed, or changes to neighboring land and its use shall not be deemed circumstances justifying the termination or extinguishment of the Easement. In addition, the inability of Grantor, or Grantor's heirs, successors or assigns, to implement any or all of the uses permitted under this Easement Deed shall not impair the validity of the Easement or this Easement Deed, or be considered grounds for ternination or extinguishment of this Easement. If circumstances arise in the future that render the purposes of this Easement impossible to accomplish, the Easement can only be terminated or extinguished, in whole or in part, by judicial proceedings in a court of competent jurisdiction after the court has explored all options 13 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, shall be determined, unless otherwise provided by Colorado law at the time, in accordance with the Proceeds paragraph below; 13.2. 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 the 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 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 Proceeds paragraph below; 13.3. 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. The Parties further stipulate that the Trust's interest in the Easement has a value of five percent 5% of the fair market value of the Property from this date forward, and such percentage interest shall remain constant in relation to any future fair market value of the Property. Such percentage interest shall be used only for determining the Trust's proportion of proceeds from any payment of damages or action resulting from circumstances described in the Extinguishment and Condemnation paragraphs above. The Parties agree that the value of any improvements to the Property made by Grantor after the date of this Easement Deed is reserved to Grantor. The Parties further agree that to the extent possible, any proceeds paid to the Trust as a result of this Section shat] be used exclusively for purposes of restoration or enhancement of the Conservation Values on the Property. If it is not possible to use all of the Trust's proceeds in this manner, such as if the entire Property is condemned or Easement terminated, the Trust may elect to apply its proceeds to another purpose within its mission. 14. Assignment. In the event the Trust is no longer able t~ carry out its duties and obligations under this Easement Deed, or if circumstances change so that another similar organization is better able to carry out such duties and obligations, the Trust may elect to transfer the Easement with notice given to Grantor and subject to Grantor's consent, which consent shall not be unreasonably withheld, provided that the Trust may assign its rights and obligations under this Easement Deed only to an organization that is (a) a qualif ed 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 the Easement 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 this Easement Deed. 14 15. Subsequent Transfers. Grantor agrees to notify any party who may purchase, lease, or otherwise hold interest in this Property of the existence and terms of this Easement Deed, and to provide a copy of the Easement Deed and the Baseline Documentation to such party if requested. Grantor further agrees to give notice to the Trust of the transfer of any such interest prior to transfer, and provide the opportunity for the Trust to explain the terms of this Deed to potential new owners prior to sale closing. In addition, at any time Grantor transfers the Property to anyone other than Grantor's family, heirs or beneficiaries, that party shall pay a fee of $100.00 to the Trust to cover administrative costs associated with the transfer as well as put the Third Party Purchaser on notice of the terms of this Easement Deed. The failure of Grantor to perform any act required by this paragraph shall not impair the validity of this Easement or Easement Deed or limit enforceability of either in any way. 16. Notices. Any communication that either Party desires or is required to give to the other shall be in writing and 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: Emma Farms, LLC and SW Enterprises, LLC c/o Tom Waldeck 915 West North Street Aspen, CO 81611 With a copy to: David J. Myler The Myler Law.Firm, P.C. 211 Midland Avenue, Suite 201 Basalt, CO 81621 To the Trust: Aspen Valley Land Trust 320 Main Street, Suite 204 Carbondale, CO 81623 17. Recordation. The Trust shall record this instrument in timely fashion in the official records of Eagle County Colorado, and may re-record it at any time as may be required to preserve its rights in this Easement and Easement Deed. 18. Amendment. If circumstances arise under which an amendment to this Easement Deed would be appropriate to promote the purposes of the Easement, 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. Any amendment must be consistent with, and protect and preserve, the purposes of the Easement and the Conservation Values and may not affect the Easement'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 the appropriate Colorado County. Correction deeds to correct factual mistakes or typographical or clerical errors may be made at the discretion of the Trust. No amendment 15 shall be allowed that affects the qualification of this Easement or the status of the Trust under any applicable laws, including C.R.S. Section 38-30.5-101, et seq., or Section 170(h) of the Code or any regulations promulgated thereunder. No amendment shall be permitted that will confer a private benefit to Grantor or any other individual or entity (see IRS Reg. 1.170A-14(h)(3)(i)) greater than the benefit to the general public, or that will result in private inurement to a Board member, staff or contract employee of the Trust (see IRS Reg. 1.501(c)(3)-1(c)(2)).. 19. Subordination. 'The Property is not subject to any mortgages or liens, and thus no subordination is necessary; 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: Survey of Property, Exhibit C: Baseline Documentation Summary, Exhibit D: Water Rights; 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," wherever used herein, shall refer to the land described in Exhibit A and water rights combined. The term "Water Rights," wherever used herein, shall refer to the water rights alone, as described in Exhibit D. The terms "Easement" and "Conservation Easement in gross" refer to the immediately vested interest in real property defined by Colorado Revised Statutes §§ 38-30.5-101 et seq. The term "Easement Deed" refers to this legal document, consisting of the rights and restrictions enumerated herein, by which said Easement is granted; 20.3. Controlling Law. The interpretation and performance of this Easement and Easement Deed shall be governed by the laws of the State of Colorado; 20.4. Liberal Construction. This Easement Deed shall be liberally construed in favor of the grant to effect the purposes of the Easement 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 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 riot apply to interpretations of this Easement Ueed or to disputes between the Parties concerning the meaning of particular provisions of this Easement Deed; 16 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 shall be deemed severablE and remain in full force and effect; 20.6. Entire A Bement. 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; 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; 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 or the Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer; 20.11. Captions. The captions in this instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon construction or 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. Irr the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling; aand 20.13. Meer. 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 any document executed in the future affecting this Easement or this Easement Deed. 17 IN WITNESS WHEREOF, Grantor and the Trust have executed this Deed of Conservation Easement as of the date first written above. GRANTOR: EMMA FAR ,LLC, SW ENTERPRISES, LLC a Colorado 1' ited liat~ity company, a Colorado limited liability company r ~ $Y: _ __ By: _ _ G~/`Z~'~ Tom Wal eck, Manager Steven Waldeck, Manager STATE OF COLORADO ) > ss. COUNTY OF ~~~~_.) The foregoing instrument was acknowledged before me this ~ day of December, 2007, by Tom Waldeck, Manager of Emma Farms, LI,C, a Colorado limited liability company, as Grantor. Y a~ ~ q~~~f'a~,seal WITNESS m h ~ >~` '`~~'"`IIII [SEAL] .`'~.r~. '~ ~''% ,~ ~ \\~~ OF C4 "/ ''~ll/llllllll ~~~\\\\ STATE OF COLORADO ) ~ ss. COUNTY OF _~) ~~ ~ ____ Notary Public My commission expires: Oct ~~_ ~ l l The foregoing instrument was acknowledged before me this Q~' day of December, 2007, by Steven Waldeck, Manager of SV6' Enterprises, LLC, a Colorado limited liability company, as Grantor. WITNESS n~~y hand and official seal. [SEAL) ~:~ ;ZONpA I~F'~,c~~'', "~ . ~. \, ~ . " . ---- otary Public = -~ --~A~-~ ~'~ My commission expires: ~.-a~~-~ PUB1.~G ~~o ~' t ~, ~FOF C~~p~\~, ,,,,..r 1111111II~`~`~ 18 ACCEPTED by TRUST: ASPEN VALLEY LAND TRUST. a Colorado nonprofit corporation, Martha Cochran, Executive Director STATE OF COLORADO ) ~ ss. COUNTY OF G~~{ ) The foregoing instrument was acknowledged before me this _ I$`4't" day of December, 2007, by Martha Cochran, Executive Director of ASPEN VALLEY LAND 'TRUST, a Colorado nonprofit corporation. WITNESS my hand and official seal. - -~ [SEAL] h~~~'t-~.C-Q ___ Notary Public My commission expires: ~j?O ~ 8~ M. SUMERA v Notary Public State of Colorado 19 EXHIBIT A Legal Description of Property ~'~-~ ,Open Space Parce A & B as shown on the Final Plat of Emma Farms, recorded r..)~r ~ ~ ; •2 , as Reception No. ~C~F;~~ in the office of the Clerk and Recorder of Eagle C unty, Colorado. 20 EXHIBIT B: Survey of Property :~- It Py ~R9 S ~~~ i• a R•d , ,_.L'~iea ;FZ tsi~ :2k^'e "i ~A _ = 8 S~ Pii ~,~~ ~= ~ o t" _ i ~f 5' ~R ~ I wco ox 4"I~~ ~`~~ = 9=Jt ~~e. D~`~ ~ ~l i •6 ai° ~; n p ~}y'~ ~u i11~., , ~ ~,~ ^ l~~ ¢G ~~ to i 1 SL ~ a,' ~ C~ J/~ ~ i4 a 39 M 6 t~~ _ ia~~=_~'~/''~C e'er idi. 'Y.i ~~~~~A ~,/ '~ ~ N! x: e M ' -4=-- ,.,..~. --mot--- o ~. e 4 €~~ ~ ~ ~, f „F ~ £~ a ~ to R ~t9 s'" ! c0 , tt ,o '~ ~~~j ~ ;I ~ O ~ .. ;,., -- .,. rid t ~ a'.°~ +; ~ X31 ' : t _ --fT"~ r~~t ~ ~ 'F ~-..a .-c.E~3~`` a~t, `~.~laun7 s~looH~ [lei _ __ __ __1__,~.a-.or_ _____. __~e ~~' a. a lira~t~ 9~~~ ~ t~ ;;~ i~~ ~ O ii ~at° ' i"°~ ~ ~~ t ~ ~ a , t~ ~ n i ~ ~ ,»,... - i _ e~ N i N e G ~ ~ ~ ~" R a ~ TCL WN.IJEi,`I( FNAL PLAT _- _ . - - ~ n`q~.-~-+.-+w-~..,. .rn~,-_-- _ __-._ _ ~ F ABPBt Co ~IMI __ _~-__ __-_ EAIdA FAfi,6 ! __- -_- ~ aew gartM Srffr ~~ eI, t,d .3i, <!l, ttt l~~~ ~~:_ ;_l~ e~. _ _~ .:,. - ;:_ ~.~ i==;~ zz~ ~__, e_ : [_ f.S _._,. :tt. - tiro r_x _;.=e YxS kci`. c.`h: _~:: ._ . : _: . :a:R ~i! SCC~_p tt5a .s',. ae5 _:~ t"SltR a` tl: s `3 Et:= ~ -3 =';? ~~_ ,°} s ~ att9 °_li .tat a.i z-- 5sa< °is~ ~ t5 ~:?9 y•,,att .3 e:n~ . t? 3 - t ~js l~39t ' 91t9 '3t i 3-- a .. aI t ?9 i ~t ttii t::: ,2'3 'tt ' 'ttt :iai i;~7 7iii 'i ~ 7iS 9ii7 ' +3i i::: . :99. 993 i9:. . ~, .i71,+9 , 3,99 si a . 'b 9,99, S •Y_ :: 9 i ~9 , ~a 3 _ 9 ittce 999S ,f i :s~: ia ~I ~ ii:= s ° :: ~~ ~' . a<. ..s :j9 :,9 i 9: i9: :99 i7:9^ s°-t - =x49 'a!' 3; i; .;L: it, 3Yt e55: iv:t e"~! [Yi4 9?c3 [:a[ ett ttr ~~l. -- ~k~i ?n ~ .: lS SAP: ` ~ ~- l „5.`. 1- tx `;,5 `: i __a R34=, tRt a S t[ 5 i Y t. ':_t l9 ,at: a ~-~ -[~ =:; ti, T="- : t R ii t 4 tR 9a it xtal Et3 t^!- <[• z SR~~ 21 EXHIBIT C Baseline Documentation Summary A conservation easement on the Emma Farms will preserve, in perpetuity, conservation elements including: . Protection of Relatively Natural Habitat of Plants/Ecosystems. The dominant plant community at Emma Farms is irrigated non-native hay grasses. Areas of native vegetation are quite limited on the Property. The southwest corner of the Property contains the largest area of native Gambel oak dominated shrublands but is also where cows and calves are confined. Consequently, the area is largely devoid of any understory. This plant community; however, also occurs in other locations along the western boundary of the Property in a relatively undisturbed state. Some mountain sagebrush habitat also occurs along the western boundary and although most of these stands occur across the boundary fence on BLM land, it does extend east on to the Property in a few locations. There are plants and plant communities with special conservation status known or likely to occur on the Property. Big sagebrush shrublands in Colorado are tracked by CNHP and all of the big sagebrush alliances are considered imperiled at the global or state level due to residential and infrastructure development. Gambel Oak-Mountain Mahogany /Elk Sedge Mixed Mountain Shrublands and Gambel Oak /Utah Serviceberry Shrubland are ranked by CNHP as threatened throughout their global range and vulnerable to extirpation in Colorado. . Protection of Relatively Natural Habitat of Fish & Wildlife. Rocky Mountain elk will occasionally occur on the Property in the late fall and early spring and will venture down off The Crown in light winters but find little forage available to sustain themselves in winters with average or greater snowpack. Mule deer can be found on the Property throughout much of the year but like elk move to areas of shrubland habitat with forage available above the snow or southerly exposures that remain relatively snow free in mid-winter. Golden eagles, red-tailed hawks, and American kestrels are frequently observed hunting above the hay fields at Emma Farms. Black bears occur on the Property. They are most often observed in early spring soon after they emerge from their dens and in the fall prior to hibernation. The irrigated hay fields on the Property provide a haven for open field loving birds such as mountain bluebirds, savannah sparrows, vesper sparrows, and western meadowlarks; insects such as northern checkerspot and common ringlet butterflies; ungulates such as mule deer and elk; and small mammals such as montane and long-tailed voles and montane and masked shrews which in turn provide food for predatory birds such as American kestrels, northern harriers, and red-tailed hawks and carnivorous mammals such as bobcats, coyotes, long-tailed weasels, and red foxes. Owls such as great-horned owl and northern saw-whet owl may occur on the Property. The property also provides habitat to a number of bat species including big brown bat and little brown myotis. * Preservation of Farmland and Forest Land. The management of the Property focuses on retaining agricultural operations and the associated surface water rights on the parcel. In the event that agricultural activities are not retained on the parcel the easement parcel will provide 22 optimal habitat for mule deer and elk as it reverts to native habitat. 'These efforts help preserve agricultural open spaces and retain irrigation rights to keep agricultural operations alive for future generations. * Preservation of Open Space. Conservation of the easement property helps to maintain a valuable agricultural open space resource. Open space in the Eagle County is being lost to residential development at an accelerating rate. In addition, the easement property is adjacent to leased grazing lands available for cattle grazing associated with the agricultural operation on the parcel. Conservation of the easement property provides an invaluable buffer between residential development and leased cattle grazing and production areas. Additionally, the potential expansion of this easement parcel into Pitkin County will provide contiguity to an adjoining easement at Happy Day Ranch. * Scenic Enjoyment. Protection of this conservation easement will preserve an important viewshed for area residents and people traveling along Highway 82, Emma Road and Hooks Lane. 'These are important scenic corridors that will be threatened if all of the very developable valley floor agricultural land is urbanized or suburbanized. 23 EXHIBIT D Water Rights The "Water Rights" include, without limitation, all of the Grantor's right, title and interests in any and all water and water rights beneficially used on the Property, acid all canals, ditches, laterals, headgates, springs, ponds, reservoirs, water allotments, water shares and stock certificates, contracts, units, wells, easements and rights of way, and irrigation equipment associated therewith. The Water Rights include surface water rights and groundwater rights, whether tributary or nontributary, decreed or undecreed, and specifically the following; 0.566 cubic feet per second ("cfs") of water for irrigation from the Home Supply Ditch, located in the SE1/4 of the SW1/4 of the NW1/4 of Section 17, Township 8 South, Range 86 West of the 6"' P.M., in Water District 38, Division 5, on the Roaring Fork River, tributary to the Colorado River, Priority No. 179, as decreed in Case Nos. CA0132 and W1801 on May 11, 1889, with an appropriation date of May 27, 1887; and 0.566 cfs of water for irrigation from the Home Supply Ditch, described above, Priority No. 261, as decreed in Case Nos. CA2811 and CA3082 on January 12, 1931, with an appropriation date of May 1, 1905; and 0.566 cfs of water for irrigation from the Home Supply Ditch, described above, Priority No. 377, as decreed in Case No. CA3082 on August 25, 1936, with an appropriation date of April 1 S, 1907 Deed of Conservation Easement in Gross djm version 121707.doc 24 TxE MYLER Law F><x1v~, P.C. A Colorado Professional Corporation DAVID J MYLER' ROBYN J MYLER''`' ADMITTED CN CO'. NY'. CT' CONNIE A WOOD, LEGAL ASSISTANT RHONDA E NEFF, LEGAL ASSISTANT Bryan R. Treu Eagle County Attorney P. O. Box 850 500 Broadway Eagle, CO 81631 TELEPHONE (970)927-0456 2I I MIDLAND AVENUE FACSIMILE (970)927-0374 SUITE 201 BASALT, COLORADO 81621 EMAILS dmyler@mylerlawpc com April 16, 2008 RE: Deed of Conservation Easement -Emma Farms Dear Bryan: rmvler@mylerlawpc com cwood@mylerlawpc com rneff(t_ilmylerlawpc com Enclosed is the fully-executed Deed of Conservation Easement in Gross between Emma Farms, LLC and SW Enterprises, LLC for the benefit of Aspen Valley Land Trust which was recorded January 8, 2008 as Reception No. 200800551. We have filled in the recording information on Exhibit A. Per our discussion, please re-record this document and have it returned to our office after recording. We will then make a copy for Emma Farms and SW Enterprises and return the original to Aspen Valley Land Trust. Thank you for your assistance in this matter. If you have any questions, please do not hesitate to call. Very truly yours, THE MYLER LAW FIRM By: ~~ David J. Myler Enclosure ~ ~ ,/'~~~~ "- MJ~ ~~ r~ ~, i ~~..._;: