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HomeMy WebLinkAboutC15-481 Eagle Valley Land Trust Deed of Conservation EasementEagle County, CO 201523012 Teak J Simonton 12/09/2015 Pgs: 30 04:40:22 PM REC: $0.00 After recording, please return to: DOC: $0.00 Eagle Valley Land Trust Attn: Jim Daus P.O. Box 3016 Edwards, CO 81632 Any time the Property is transferred by Grantor to any third party, Grantor shall pay a transfer fee of $500 to Grantee and notify Grantee pursuant to the requirements of Section 11 of this Deed. DEED OF CONSERVATION EASEMENT Cordillera Ridge Open Space THIS DEED OF CONSERVATION EASEMENT ( "Deed ") is granted on this IM day of A 2015, by the COUNTY OF EAGLE, STATE OF COLORADO, by and through its BOARD OF COUNTY COMAUSSIONERS, whose address is P.O. Box 850, Eagle, Colorado 81631 ( "Grantor ") to EAGLE VALLEY LAND TRUST, a Colorado non- profit corporation, whose address is P.O. Box 3016, Edwards, Colorado 81632 ( "Grantee "). (Grantor and Grantee are collectively referred to herein as the "Parties "). RECITALS A. Description of Property. Grantor is the owner of the fee simple interest in approximately 167 acres of real property located in Eagle County, Colorado, more particularly described in Exhibit A and depicted in Exhibit B, both attached hereto and made a part hereof (the "Property "). B. Qualified Organization. Grantee is a "qualified organization," as defined in I.R.C. § 170(h) and a charitable organization exempt under I.R.C. § 501(c)(3), as required under C.R.S. § 38- 30.5- 104(2). Grantee is certified to hold conservation easements for which a state tax credit is claimed by the State of Colorado's Division of Real Estate pursuant to C.R.S. § 12- 61 -720, and Rule A -1 of the Code of Colorado Regulations, Qualifications for Certification to Hold Conservation Easements, (4 C.C.R. 725 -4, Rule A -1). Grantee is also accredited by the Land Trust Accreditation Commission, a national accreditation program sponsored by the Land Trust Alliance. Grantee's primary purpose is to preserve and protect the natural, scenic, agricultural, historical, and open space resources of Eagle County, including the area in which the Property is located, by assisting landowners who wish to protect their land in perpetuity to preserve and conserve natural areas, environmentally significant land, and working landscapes for ecological, scenic, aesthetic, scientific, charitable and educational purposes. C15 -481 C. Conservation Purposes. According to I.R.C. § 170(h)(4)(A) and Treas. Reg. § 1.170A- 14(d), the conservation purposes of a qualified conservation contribution must include one or more of the following: (1) to preserve land for outdoor recreation by or education of the general public; (2) to protect relatively natural habitat of fish, wildlife or plants; (3) to preserve open space; and (4) to preserve historically important land or structures. The conservation purposes set forth in this Recital C and referred to hereafter in this Deed are collectively referred to as the "Conservation Values." The Conservation Values of the Property are as follows: 1) Open Space [Treas. Reg. § 1.170A- 14(d)(4)]. The Property qualifies as open space because it is being preserved for the scenic enjoyment of the general public and pursuant to a clearly delineated federal, state or local governmental conservation policy (set forth in Recitals D and E below) and will yield a significant public benefit. a. Scenic EnioMent. The Property's preservation will provide scenic enjoyment to the general public because the Property is in an undeveloped and natural condition, featuring a mosaic of natural vegetation communities across dramatic topography, in the context of the Lake Creek valley of the greater Eagle River Valley watershed. As such, the Property adds to the scenic character, openness, and variety of the local rural landscape. The Property's open space provides a development buffer or visual separator between the communities of Cordillera and Lake Creek valley / Edwards. The Property is visually accessible to the public from Interstate 70 and U.S. Highway 6, and from nearby adjacent United States Forest Service (USFS) lands, and the preserved Homestead L, Miller Ranch, and Eagle River Preserve open space properties and the public trails upon them, which are actively used by the citizens of Eagle County and the State of Colorado. b. Significant public benefit. There is a foreseeable trend of urbanization and rural subdivision development in the vicinity of the Property in the near future in the community of Cordillera and the surrounding areas within Eagle County. There is a strong likelihood that development of the Property would lead to or contribute to degradation of the scenic and natural character of the area. 2) Relatively Natural Habitat [Treas. Reg. § 1.170A- 14(d)(3)]. The Property supports native sagebrush and mixed montane shrublands, aspen stands, and conifer woodlands that provide forage, cover, breeding habitat, and migration corridors for a variety of wildlife species, including migratory songbirds, raptors, small mammals, and big game. The Property's habitat is "significant" as defined by Treas. Reg. § 1.170A- 14(d), because it supports or potentially supports species considered rare, threatened, or 2 of special concern — namely bald eagle and Harrington's penstemon. The Property provides summer and winter range for mule deer, summer range and a winter concentration area for elk, and overall range for mountain lion and black bear. These big game vertebrates are important to the biodiversity of the region and to the economy of Eagle County and the State of Colorado. These Conservation Values are of great importance to Grantor, Grantee, the residents of Eagle County, and the State of Colorado. It should also be noted that the terms of this Easement (defined below) do not permit a degree of intrusion or future development that would interfere with the Conservation Values. D. State Policy Concerning Conservation Easements. 1) C.R.S. § 33 -1 -101 provides in relevant part that "it is the policy of the state of Colorado that the wildlife and their environment are to be protected, preserved, enhanced, and managed for the use, benefit, and enjoyment of the people of this state and its visitors." 2) C.R.S. § 35 -3.5 -101 states in part that "it is the declared policy of the state of Colorado to conserve, protect, and encourage the development and improvement of its agricultural land for the production of food and other agricultural products." 3) C.R.S. § 38- 30.5 -102 provides for the creation of conservation easements to maintain land "in a natural, scenic, or open condition, or for wildlife habitat, or for agricultural, horticultural, wetlands, recreational, forest or other use or condition consistent with the protection of open land, environmental quality or life sustaining ecological diversity ..." 4) The Colorado Department of Transportation statutes (C.R.S. § 43 -1 -401, et seq.) provide that the "preservation and enhancement of the natural and scenic beauty of this state" are of substantial state interest. 5) The Western Governors' Association Policy Resolution 08 -21 supports "voluntary incentive -based methods for preserving open space, maintaining land and water for agricultural and timber production, wildlife and other values." 6) C.R.S. § 33 -10 -101 provides "It is the policy of the state of Colorado that the natural, scenic, scientific, and outdoor recreation areas of this state are to be protected, preserved, enhanced, and managed for the use, benefit, and enjoyment of the people of this state and visitors of this state." E. Other Supporting Government Policy. 1) Eagle County Resolution No. 02 -123 provides for the creation of an open space mill levy for the purpose of acquiring, maintaining, or permanently preserving open space to preserve wildlife habitat, protect working farms and ranches, conserve scenic landscapes and vistas, protect wetlands and floodplains, or provide public access points to rivers and streams. 2) Eagle County Resolution No. 03 -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. 3) The Eagle County Comprehensive Plan states that: "Eagle County is a place where natural ecosystems are preserved and maintained in order to assure the health and wellbeing of local wildlife populations." 4) The Eagle County Comprehensive Plan states that: "The integrity, quality and interconnected nature of critical wildlife habitat in Eagle County should be preserved." 5) The Eagle County Comprehensive Plan states that: "A variety of approaches should be utilized to preserve land as open space" including conservation easements. F. Documentation of Present Conditions. Pursuant to Treas. Reg. § 1.170A- 14(g)(5) and in order to document the condition of the Property as of the date of this Deed, a report has been prepared by Rare Earth Science, LLC and dated March, 2015 (the "Baseline Report "). The Baseline Report contains a natural resources inventory and also documents the Conservation Values and the characteristics, current use, and status of improvements on and development of the Property. Grantor and Grantee have viewed the Property at the time of the transfer of this Deed and each acknowledges that the Baseline Report is an accurate representation of the Property at the time of the transfer. The Baseline Report has been provided to both Parties and will be used by Grantee to assure that any future changes in the use of the Property will be consistent with the terms of this Deed. However, the Baseline Report is not intended to preclude the use of other evidence to establish the condition of the Property as of the date of this Deed. NOW, THEREFORE, in consideration of the recitals set forth above, incorporated herein by reference, and the mutual covenants, terms, conditions, and restrictions contained herein, and 4 pursuant to the laws of the State of Colorado, Grantor voluntarily grants and conveys to Grantee and Grantee voluntarily accepts, a perpetual conservation easement in gross ( "Easement "), an immediately vested interest in real property defined by C.R.S. §§ 38- 30.5 -101, et seq., and of the nature and character described in this Deed, for the purpose of preserving and protecting the Conservation Values in perpetuity, subject to, and without affecting, any currently - existing rights, if any, of third parties or the United States, encumbering the Property, under Federal law, Colorado statutory law or common law ( "Third -Party Rights "). Purpose. The purpose of this Easement is to preserve and protect the Conservation Values in perpetuity in accordance with I.R.C. § 170(h), Treas. Reg. § 1.170A -14, and C.R.S. § 38- 30.5 -101, et seq. ( "Purpose "). The Parties intend to permit acts on and uses of the Property that are consistent with the Purpose and not expressly prohibited by this Deed and to restrict or prohibit acts on and uses of the Property that are not consistent with the Purpose. In this Deed, "consistent with the Purpose" shall mean acts on and uses of the Property that have a positive impact, neutral impact, or no impact on the Conservation Values as determined by Grantee in its reasonable discretion as a land trust accredited by the Land Trust Alliance and certified by the State of Colorado's Division of Real Estate pursuant to C.R.S. § 12 -61 -720, and Rule A -1 of the Code of Colorado Regulations, Qualifications for Certification to Hold Conservation Easements, (4 C.C.R. 725 -4, Rule A -1), as amended. This Deed sets forth certain uses and activities that are expressly permitted and consistent with the Purpose, but subject to specified qualifications, conditions, and requirements of, and procedures for, prior notice to or approval of Grantee. Nothing in this Deed is intended to compel a specific act or use of the Property other than the preservation and protection of the Conservation Values. 2. Rights of Grantee. To accomplish the Purpose of this Easement, this Deed conveys the following rights to Grantee, its employees and its representatives: a. To preserve and protect the Conservation Values; b. To enter upon the Property at reasonable times to monitor Grantor's compliance with and otherwise enforce the terms of this Easement; provided that, prior to such entry, Grantee shall first provide reasonable notice to Grantor, and Grantee shall not unreasonably interfere with Grantor's use and quiet enjoyment of the Property; C. To prevent any activity on or use of the Property that is inconsistent with the Purpose of this Easement, Grantee may require the restoration of such areas or features of the Property that are damaged by an inconsistent activity or use, all as more fully set forth herein; d. To enforce the terms and provisions of this Deed; and e. To place signs on the Property that identify the land as being protected by this Easement, the size, number, and location of which signs are.subject to Grantor's reasonable approval. Nothing in.this Section 2 shall preclude the right of Grantee to enforce the preservation and protection of the Conservation Values of the Property, or any other provision of this Easement. 3. Rights Retained by Grantor. Grantor retains the right to perform any act on or use of the Property that is not prohibited or restricted by this Deed, provided that such acts or uses are consistent with the Purpose. 4. Management Plan. Grantor and Grantee have prepared and mutually agreed to a land management plan (the "Management Plan" or the "Plan "), a copy of which will be kept on file in the offices of Grantor and Grantee. The Property shall be operated and managed in accordance with the Management Plan or as otherwise set forth in this Deed. Grantor and Grantee shall review the Management Plan annually at the time of Grantee's monitoring of the Property, and the Plan shall be amended if determined necessary by either Party. If Grantor intends to undertake any activities not expressly permitted by this Deed or addressed in a current Management Plan, Grantor shall not undertake such activities unless and until Grantor has first prepared, and Grantee has approved, an amendment to the Management Plan. Any amendment to the Management Plan shall be reviewed by Grantee, and shall not be effective unless and until approved by Grantee in accordance with Sections 17 (Grantor's Notice) and 18 (Grantee's Approval) of this Deed. 5. Property Improvements. Improvements existing as of the date of this Deed are permitted. The installation, placement or construction of any other improvement is prohibited unless expressly permitted by this Section 5. a. Existing Improvements. At the time of granting of this Deed, there are no improvements on the Property except for trails, a trailside bench, a buried irrigation pipe, irrigation access dirt roads, limited perimeter and interior fencing and small directional trail signs as depicted on Exhibit C attached hereto and made a part hereof. b. New Improvements. The following shall be referred to herein as "New Improvements:" Grantor may place, install, construct, maintain, repair and replace the following new improvements within the one (1) acre area depicted on Exhibit D attached hereto and made a part hereof (the "Trailhead Envelope "): (i) a parking area, which Grantor may grade or surface with pavement, gravel or similar road base type material, install drainage, erosion control measures or other improvements necessary for the safe operation of the parking area; (ii) interpretive and directional signage; (iii) wildlife resistant trash collection containers; (iv) post and rail or other wildlife friendly fencing; (v) picnic tables; (vi) landscaping and landscape berms; and (vii) security cameras. 2. Prior to the location, construction, replacement or enlargement of any New Improvement as permitted in this Section 5, Grantor shall notify Grantee in accordance with Section 17 (Grantor's Notice) of this Deed. C. Road Construction and Paving. For purposes of this Section 5.c., "Roads" shall mean any permanent road that is graded, improved or maintained, including any seasonal unimproved roads. Grantor shall not construct or establish new Roads except for a Road to access the Trailhead Envelope, unless approved by Grantee pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's Approval) of this Deed. Grantor shall not pave or otherwise surface any Road without Grantee's approval pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's Approval) of this Deed. Grantor may gate the Road used to access the Trailhead Envelope. Subject to the foregoing, Grantor may maintain and repair Roads without Grantee's permission, but Grantor may not widen or otherwise improve any Road unless approved by Grantee in in accordance with Sections 17 (Grantor's Notice) and 18 (Grantee's Approval) of this Deed. d. Fences. Grantor may maintain, repair, replace or remove existing fences. Grantor may construct, maintain, repair and replace new fences anywhere on the Property, provided the location and design of such fences are wildlife friendly and are set forth in the Management Plan. e. Utility Improvements. Grantor's existing utility improvements, if any, including but not limited to: (i) transformers and power lines; and (ii) telephone lines ( "Utility Improvements "), may be maintained, repaired or replaced with an improvement of similar size and type at their current locations on the Property without further permission of Grantee. The construction, maintenance, repair and replacement of renewable energy generating systems including, but not limited to, wind, solar, geothermal or hydroelectric, solely for uses permitted on the Property is permitted provided that such activity is consistent with the Purpose (also, "Utility Improvements "). Grantor may install Utility Improvements within the Roads provided such Utility Improvements are needed to serve permitted improvements and uses within the Trailhead Envelope. Except as provided in the foregoing sentences, Grantor shall not install, place, construct, or enlarge any other new Utility Improvements without Grantee's approval pursuant to Sections 17 (Grantor Notice) and 18 (Grantee's Approval) of this Deed. Following the maintenance, repair, replacement, enlargement or construction of any Utility Improvements by Grantor, Grantor shall promptly restore and re- vegetate any disturbed area to a condition consistent with the Purpose. Any easement, right of way or other interest granted to a third party by Grantor or otherwise reserved by Grantor to be used for Utility Improvements is subject to Section 7.g (Easements, Rights of Way or Other Interests) of this Deed. f. Signs. Grantor may place and maintain the following signs on the Property: a trailhead sign within the Trailhead Envelope and directional signs, provided that the trailhead sign does not exceed twelve (12) square feet, and directional trail signs do not exceed four (4) square feet. Grantor may place larger signs on the Property with Grantee's approval pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's Approval) of this Deed. g. Recreational Trails. Except as set forth in Section 61 of this Deed, use of the Property for the recreational purposes set forth in Section 6.d of this Deed is limited to the existing trails depicted on Exhibit C or on new trails ( "Trails ") approved as part of the Management Plan or otherwise approved by Grantee pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's Approval) of this Deed. The Management Plan shall set forth general guidelines for the use and maintenance of the Trails. The surface of the Trails shall be dirt, gravel, rock, or other natural surface, the width of any Trails shall not exceed six (6) feet, and the Trails may include railings and steps. Grantor reserves the right to make improvements to the Trails and allow use of the Trails as may be required under the law to comply with 42 U. S.C. § § 12101 et seq. h. Motor Vehicles. Grantor, and any other entity or person Grantor authorizes, may use motorized vehicles, including without limitation all- terrain vehicles and agricultural and construction vehicles (i) on any Roads, (ii) within the Trailhead Envelope, and (iii) on any portion of the Property that is not a Road, provided that 8 such vehicles shall be used only for construction of the New Improvements or for agricultural or property management purposes including, but not limited to, maintenance of the Trails, weed control, and habitat restoration. Notwithstanding the foregoing, Grantor shall have the right to permit motorized access on the Trails in order to comply with 42 U.S.C. §§ 12101 et seq. Any portion of the Property disturbed due to the use of motor vehicles shall be restored to a condition as close to its original condition as reasonably practicable. 6. Resource Management. Grantor recognizes the importance of good resource management and stewardship to preserve and protect the Conservation Values. To this end, Grantor shall conduct the following uses of the Property in accordance with the provisions below. If Grantee believes any resource management practice(s) are not consistent with the Purpose, Grantee, in addition to all of its rights under this Deed, may request that the Parties consult with a mutually agreed upon resource management . professional with a mutually agreed upon fee for services. This professional will provide written recommendations for said resource management practice(s) and Grantor shall follow the resource management professional's reasonable recommendations, only after Grantor and Grantee have jointly determined that said recommendations are consistent with the Purpose. Grantor shall pay the costs for such consultation, including any fees for the resource management professional. a. Relatively Natural Habitat: Grantor may conduct major habitat management activities such as chaining juniper or sagebrush, restoring habitat, and conducting prescribed burns in accordance with the Management Plan. b. Mineral Extraction. As of the date of this Deed, Grantor owns all of the coal, oil, gas hydrocarbons and other minerals (the "Minerals ") located on, under, or in the Property or otherwise associated with the Property. This Easement expressly prohibits the mining or extraction of Minerals using any surface mining method. Grantor may permit subsurface access to Minerals from locations off the Property, provided that Grantor shall not pen-nit such subsurface access to disturb the subjacent and lateral support of the Property. C. Timber. On a limited and localized basis, Grantor may cut or prune trees, shrubs and other vegetation on the Property to control insects and disease, to control invasive non - native species, to prevent personal injury and Property damage, and for domestic uses on the Property such as firewood and construction of permitted Improvements. Grantor may conduct tree thinning activities to mitigate forest fires, and to maintain a healthy ecosystem on the Property in accordance with the Management Plan. Commercial logging is prohibited. Large -scale alteration or Z removal of native trees, shrubs and other vegetation from the Property may only occur upon agreement of the Parties. Re- vegetation of the Property including planting of shrubs and trees is permitted in a manner consistent with the Purpose. d. Recreation. Grantor may undertake, or permit members of the public to undertake passive, non - motorized recreation on the Property, including, but not limited to, wildlife watching, hiking, biking, and hunting in accordance with the regulations as set forth by the Colorado Division of Parks and Wildlife, and snowshoeing and cross - country skiing, provided they are undertaken in accordance with the Management Plan. Notwithstanding the foregoing, Grantor may allow motorized access in the manner otherwise permitted in Section 5 and Section 61 of this Deed. e. Weeds. The Parties recognize the potential negative impact of noxious weeds and invasive plant species on the Conservation Values. Grantor shall manage noxious weeds and invasive plant species in accordance with the Management Plan. Grantee has no responsibility for the management of noxious weeds and invasive plant species. f. Water Rights. No water rights are encumbered by this Easement. g. Irrigation Ditches. The Parties acknowledge the existence of irrigation ditches on the Property in the general locations shown on Exhibit C, attached hereto and made a part hereof (the "Irrigation Ditches "). Notwithstanding anything in this Deed to the contrary, the Parties acknowledge that third parties or the United States, may have rights to access, construct, maintain, repair and replace the Irrigation Ditches in accordance with Third -Party Rights, and to the extent permitted by federal or state law, such Third -Party Rights may include the right to access, construct, maintain, repair and replace roads and fences associated with the Irrigation Ditches, and to use motor vehicles for such purposes. Grantor agrees that any agreement Grantor enters into with third parties or the United States regarding the Third -Parry Rights that permits disturbance of the Property, shall also require restoration of the Property to a condition as close to its original condition as reasonably practicable. h. Special Events. Grantor also reserves the right to conduct special events on the Property, provided such special events are approved by Grantee as part of the Management Plan or are otherwise approved by Grantee pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's Approval) of this Deed, and provided Grantor conducts such special events in a manner that minimizes damage to the 10 Conservation Values and promptly and diligently re- vegetates any disturbed areas with native seed and/or vegetation. i. Public Access. Nothing contained herein shall be construed as affording the public access to any portion of the Property. The Parties acknowledge that Grantor reserves the right to permit public access to the Property, in accordance with the Management Plan, for use by the public for purposes permitted by this Deed, which right shall include the right to permit access to the Trailhead Envelope by motor vehicle on a Road permitted by Section 5.c of this Deed. Restricted Practices. a. Subdivision. Grantor and Grantee agree that the division, subdivision or de facto subdivision of the entire Property, whether by legal or physical process, into two or more parcels of land or partial or separate interests (including, but not limited to, condominium interests or the partition of undivided interests) is prohibited. At all times Grantor shall own and convey the Property as a single parcel which shall be subject to the terms and conditions of this Easement. Grantor may own the Property by joint tenancy or tenancy in common; provided, however, that Grantor shall not undertake any legal proceeding to partition, subdivide or divide in any manner such undivided interests in the Property. b. Surface Disturbance. Except as otherwise permitted by this Deed, Grantor shall not alter the surface of the land, including without limitation, moving, excavating or removing soil, sand, gravel, rock, peat or sod, unless such alteration is associated with permitted acts on and uses of the Property and is consistent with the Purpose. Commercial or Industrial Activity. Grantor shall not conduct industrial uses of the Property. Grantor may conduct commercial uses on the Property with Grantee's approval pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's Approval) of this Deed. d. Feed Lot. Grantor shall not establish or maintain a feed lot. For purposes of this Deed, "feed lot" means a permanently constructed confined area or facility which is used and maintained continuously and exclusively for purposes of warm -up or fattening large numbers of livestock for market. Nothing in this Section 7.d shall prevent Grantor from seasonally confining livestock into an area, corral or other facility for warm -up or feeding, or from leasing pasture for the grazing of livestock owned by others. 11 e. Trash. Grantor may not dump or accumulate any kind of trash, sludge, or refuse on the Property, except for trash contained within wildlife resistant trash containers. f. Hazardous Materials. Grantor may use agri- chemicals on the Property in accordance with all applicable federal, state or local laws. Otherwise, the treatment, permanent storage, disposal or release of hazardous materials on, from or under the Property is prohibited. For the purpose of this Deed, hazardous materials shall mean any hazardous or toxic material or waste that is subject to any federal, state, or local law or regulation. Notwithstanding anything in this Deed to the contrary, this prohibition does not impose any liability on Grantee for hazardous materials, nor does it make Grantee an owner of the Property, nor does it permit or require Grantee to control any use of the Property that may result in the treatment, storage, disposal or release of hazardous materials within the meaning of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ( "CERCLA "). g. Easements, Rights of Way or Other Interests. Except as otherwise permitted in this Deed, the conveyance or modification of an easement, right of way, or other similar interest is prohibited without Grantee's approval pursuant to Sections 17 (Grantor Notice) and 18 (Grantee's Approval) of this Deed. h. Other Restricted Uses. Grantor shall not construct or establish golf courses, sod farms, helicopter pads, and airstrips. i. Telecommunications Facilities. Grantor shall not erect, construct, install, relocate, or use a communication facility, telecommunication facility, network element, telecommunication equipment, or any other equipment or material that may be used for telecommunications or to provide telecommunication services (as such terms are defined in The Federal Telecommunications Act of 1996), without Grantee's approval pursuant to Sections 17 (Grantor Notice) and 18 (Grantee's Approval) of this Deed. Wildfire. In the event of a wildfire, any and all methods of extinguishing the fire are permissible. Also, in the event of a wildfire, the Property is available for staging of fire activities and camping for firefighters depending on the severity of an event. 12 8. Responsibilities of Grantor and Grantee Not Affected. Other than as specified herein, this Deed is not intended to impose any legal or other responsibility on Grantee, or in any way to affect any existing rights or obligations of Grantor as owner of the Property. Additionally, unless otherwise specified below, nothing in this Deed shall require Grantor to take any action to restore the condition of the Property after any Act of God or other event over which Grantor had no control, provided, however, that Grantee shall have the right to bring an action at law or in equity for trespass or any other appropriate cause of action against any third party who violates the terms of this Easement. Grantor shall continue to be solely responsible and Grantee shall have no obligation for the upkeep and maintenance of the Property and Grantor understands that nothing in this Deed relieves Grantor of any obligation or restriction on the use of the Property imposed by law.. Among other things, this shall apply to: a. Taxes. Grantor is a tax - exempt entity. However, if Grantor or the Property ever become subject to real or personal property taxes or assessments levied against the Property, Grantor shall be solely responsible for payment of all taxes and assessments levied against the Property. If Grantee is ever required to pay any taxes or assessments on its interest in the Property, Grantor will reimburse Grantee for the same. If for any reason Grantor fails to pay any taxes, assessments or similar requisite charges, Grantee may pay such taxes, assessments or similar requisite charges, and may bring an action against Grantor to recover all such taxes, assessments and similar charges plus interest thereon at the rate charged delinquent Property taxes by the county treasurer's office in which the Property is located. b. No Liability. Grantee shall not be liable for injury or damages .occurring on, or arising from, the Properly unless due solely to the gross negligence or intentional acts of the Grantee. Liability of Grantor, if any, shall not exceed an amount equal to any limits set forth in the Colorado Governmental Immunity Act now existing or as may hereafter be amended, nor confer any rights or benefits on any person or activity not a party to this Agreement. Grantor does not waive or intend to waive the limitations on liability which are provided to it under the Colorado Governmental Immunity Act, C.R.S. § 24 -10 -101 et seq. Grantor agrees to obtain and maintain at all times, commercial general liability insurance consistent with the limits set forth in the Governmental Immunity Act, naming Grantee as an additional insured. Grantor shall provide proof of such insurance at any time requested by Grantee. 13 9. Enforcement. a. General Provisions. Grantee shall have the right to prevent and correct or require correction of violations of the terms of this Deed. If Grantee determines that immediate entry is required to inspect for, prevent, terminate, or mitigate a violation of the terms of this Deed, Grantee may enter the Property without advance notice. If such entry occurs, Grantee shall notify Grantor within a .reasonable time thereafter. If Grantee determines that a violation has occurred, Grantee shall notify Grantor, of the nature of the alleged violation in writing. Upon receipt of said notice, Grantor shall immediately cease the alleged violation and within thirty (30) days either (i) if necessary, provide a written plan for restoration and remediation of the Property and, once approved by Grantee, restore or remediate the Property in accordance with the plan; or (ii) provide written documentation demonstrating that the activity is permitted and is not a violation. Grantee's acceptance of Grantor's actions under (i) or (ii) above shall be in Grantee's sole discretion, and shall be confirmed by Grantee in writing. If Grantor is unable or unwilling to immediately cease the alleged violation, and comply with (i) or (ii) above, the Parties agree to resolve the dispute through mediation as set in forth in Section 32 or judicial process. At any point in time, Grantee may take appropriate legal action, including seeking an injunction, to stop the alleged violation. b. Costs of Enforcement. Any costs incurred by Grantee in enforcing the terms of this Deed against Grantor, including, without limitation, costs and expenses of suit, and attorneys' fees necessitated by Grantor's violation of the terms of this Deed, shall be borne by Grantor. If the deciding body determines that Grantor is the prevailing party on all claims in any court action to enforce the terms of this Deed, the Parties shall each be responsible for their own costs and attorney fees. The foregoing two sentences are subject to the following: Any costs of restoration necessitated by Grantor's violation of the terms of this Deed, shall be borne by Grantor. ii. If an action is brought to enforce the final decision of the mediator that was agreed to by the Parties, then the prevailing Party shall be entitled to payment from the non - prevailing Party of its costs incurred in enforcing the terms of the final decision, including, without limitation, its costs and expenses of suit, and attorneys' fees. C. Grantee's Discretion. Grantee's remedies described in this Section 9.c shall be cumulative and shall be in addition to all remedies now or hereafter existing at 14 law or in equity, including the right to recover any damages for loss of Conservation Values as described in C.R.S. § 38- 30.5 -108. The failure of Grantee to discover a violation or to take action shall not waive any of Grantee's rights, claims or interests in pursuing any such action at a later date. 10. Transfer of Easement. a. Grantee shall have the right to transfer this Easement to any public agency or private non - profit organization that, at the time of transfer: (i) is a "qualified organization" under I.R.C. § 170(h); (ii) is authorized to hold conservation easements under C.R.S. § §38- 30.5 -101, et seq. and C.R.S. §12 -61 -720, (iii) expressly agrees in writing to abide by the terms of this Easement and to assume the responsibility imposed on Grantee by this Easement; and (iv) is approved in writing by Grantor (and by Eagle County if Eagle County no longer owns the Property), such approval not to be unreasonably withheld. Grantee shall provide Grantor with a written request to assign this Deed at least forty-five (45) days prior to the date proposed for the assignment transaction. b. If Grantee ever ceases to exist or no longer qualifies under federal and state law to hold conservation easement interests, or if Grantee desires to transfer this Deed to a qualified organization having similar purposes as Grantee, but Grantor has refused to approve the transfer, a court with jurisdiction shall transfer this Deed to another qualified organization having similar purposes and that agrees to abide by the terms of this Easement and to assume the responsibility imposed on Grantee by this Easement, provided that Grantor shall have adequate notice of and an opportunity to participate in the court proceeding leading to the court's decision on the matter. c. Upon compliance with the applicable portions of this Section 10, the parties shall record an instrument completing the assignment in the Eagle County Clerk and Recorder's Office. Assignment of this Easement shall not be construed as affecting this Easement's perpetual duration and shall not affect this Easement's priority against any intervening liens, mortgages, easements, or other encumbrances. 11. Transfer of Property. Any time the Property or a portion thereof is transferred by Grantor to any third party, Grantor shall pay a transfer fee of $500 to Grantee to be used for purposes consistent with Grantee's mission, except that such transfer fee shall not apply to any transfer by the original Grantor to a successor. Grantor agrees to incorporate the terms of this Deed by reference in any deed or other legal instrument by which it 15 divests itself of any interest in all or a portion of the Property, including, without limitation, a leasehold interest. Grantor shall notify Grantee (and Eagle County if Eagle County no longer owns the Property) in writing within (5) business days after closing using the form in Exhibit E attached hereto and made a part of this Deed, and shall attach to the form a copy of the new ownership deed. Grantee reserves the right to record a notice of transfer fee in the official real property records of Eagle County, Colorado. Notwithstanding the notice identified above in this Section 11, in the event any owner of the Property other than Eagle County intends to convey or receives an offer to purchase the Property, then Eagle County shall have the first right to reacquire the Property upon the same terms and conditions of its first transfer of the Property and to protect the Conservation Values. Written notice shall be given to Eagle County and Eagle County shall have thirty (30) days to respond that it intends to exercise its right to reacquire the Property. If Eagle County fails to respond or declines the right to reacquire, then the sale or conveyance may be made to a third party subject to the terms of this Deed. This right to reacquire shall apply to all third party transfers of the Property. 12. Real Property Interest. The granting of this Deed immediately vests Grantee with a property interest. Grantor and Grantee agree that this property interest is thirty percent (30 %) of the full fair market value of the Property (the "Proceeds Percentage "). Pursuant to Treasury Regulation § 1. 170A- 14(g)(6)(ii), Grantor and Grantee further agree that this percentage shall remain constant. 13. Termination of Easement. This Easement may only be terminated or extinguished by judicial proceedings by a court of competent jurisdiction. The total loss of all the Conservation Values on the Property is the only grounds under which this Easement can be terminated. If this Easement is extinguished or terminated, whether in whole or in part, Grantee shall be paid proceeds equal to the Proceeds Percentage multiplied by the fair market value of the Property. Grantee's use of the proceeds shall be used in a manner consistent with its conservation purpose and in compliance with Treas. Reg. § 1.170A- 14(g)(6)(i). 14. Eminent Domain. Grantor shall notify Grantee immediately of any communication or notice received concerning any proposed taking under the power of eminent domain by public, corporate, quasi - governmental or other authority, or acquisition by such authority through purchase in lieu of the exercise of eminent domain ( "Condemnation ") affecting the Property, and Grantee shall have the right to participate in any proceedings as a real property interest holder. Grantee may pursue any remedies in law or equity, including opposition to the Condemnation of the Property. If all or any part of the Property is taken by Condemnation, Grantee shall receive proceeds directly from the authority for any such 16 Condemnation equal to the Proceeds Percentage multiplied by the total proceeds received by Grantor. 15. Perpetual Duration. This Easement shall be a servitude running with the land in perpetuity. The provisions of this Deed that apply to Grantor or Grantee shall also apply to their respective agents, heirs, executors, administrators, assigns, and all other successors as their interests may appear; provided, however, that each parry's rights and obligations under this Easement shall terminate (as to such party, but not as to such party's successor, who shall be bound as provided herein) upon a transfer of the parry's entire interest in this Easement or the Property, except that liability of such transferring party for acts or omissions occurring prior to such transfer shall survive the transfer. 16. Change of Circumstance. Grantor has considered that acts or uses restricted or prohibited by this Deed may become more economically valuable than the permitted uses and acts. It is the intent of both Grantor and Grantee that such circumstances shall not justify the termination or extinguishment of this Easement pursuant to Section 13. In addition, the inability to carry on any or all of the permitted uses, or the unprofitability of doing so, shall not impair the validity of this Easement or be considered grounds for its termination or extinguishment pursuant to Section. 13. 17. Grantor's Notice. Where Grantor's notice is required in this Deed, Grantor shall notify Grantee in writing not less than thirty (30) calendar days prior to the date Grantor intends to undertake the activity in question. The written notice shall describe the proposed activity in sufficient detail (i.e. location, size, scope, design, nature) to allow Grantee to evaluate the consistency of the proposed activity with the pertinent terms of this Easement. 18. Grantee's Approval. Where Grantee's approval is required in this Deed, Grantee shall grant or withhold its approval in writing within thirty (30) calendar days of receipt of Grantor's written notice thereof which must comply with Section 17. As part of its determination, Grantee shall consider the proposed manner in which the proposed activity will be conducted, whether it complies with the terms of this Easement; and the likely impact on the Conservation Values. Grantee's approval may be withheld only if Grantee reasonably determines that there is a significant risk that the activity as proposed is not consistent with the Purpose. Grantee may condition its approval on Grantor's acceptance of modifications, which Grantee reasonably determines makes the proposed activity consistent with the Purpose. Grantee may request additional information from Grantor during the thirty (3 0) day period, and Grantee shall then have an additional thirty (3 0) days from the receipt of such additional information to approve or deny Grantor's request in writing. If Grantee does not respond to Grantor's written request within thirty (30) 17 calendar days of receipt, the request shall be deemed denied, provided however, that if after expiration of the 30 -day period, Grantor submits a second written request, and Grantee does not respond within thirty (30) calendar days of receipt of Grantor's second request, Grantor's request shall be deemed approved. Grantor shall not engage in the proposed act or use until Grantor receives Grantee's approval in writing (or unless Grantee fails to respond within thirty (30) calendar days after receipt of Grantor's second request). If Grantor disagrees with the decision of Grantee, Grantor may appeal the decision through the mediation process set forth in Section 32. 19. Notices. Any notice that either parry is required to give to the other in writing shall be transmitted via (i) hand delivery, (ii) U.S. mail, (iii) overnight delivery service that provides proof of delivery, or (iv) any other delivery service mutually agreed to by the Parties in writing, to the following addresses, which addresses may change from time to time by a party giving written notice in the manner set forth above: Grantor: The Board of County Commissioners of Eagle County P.O. Box 850 500 Broadway Eagle, Colorado 81631 Phone: 970 - 328 -8605 Fax: 970- 328 -8629 With a copy to: Eagle County Open Space P.O. Box 179 500 Broadway Eagle, Colorado 81631 Phone: 970 - 328 -8698 Fax: 970- 328 -7185 Eagle County Attorney P.O. Box 850 500 Broadway Eagle, Colorado 81631 Phone: 970 - 328 -8685 Fax: 970 - 328 -8699 18 Grantee: Eagle Valley Land Trust P.O. Box 3016 Edwards, Colorado 81632 Phone: 970 - 748 -7654 Fax: 970 - 949 -1357 20. Liens on the Property. No provisions of this Deed should be construed as impairing the ability of Grantor to use this Property as collateral for subsequent borrowing. Any mortgage or lien arising from such a borrowing is subordinate to this Easement. 21. No Merger. Unless the Parties expressly state that they intend a merger of estates or interests to occur, then no merger shall be deemed to have occurred hereunder or under any document executed in the future affecting this Easement. 22. Grantor's Representations and Warranties. a. Grantor warrants that Grantor has good and sufficient title to the Property, free from all liens and encumbrances except ad valorem property taxes for the current year, Third -Parry Rights and other interests of record. b. Grantor represents that upon information and belief: i. At the time of executing this Deed, no hazardous substance or toxic waste is currently being treated, stored, used, disposed of, deposited, or transported, in, on, or across the Property by Grantor, and Grantor is not aware of any underground storage tanks located on the Property; ii. At the time of executing this Deed, the Property is in compliance with all federal, state, and local laws, regulations, and requirements applicable to the Property and its proposed use as open space; At the time of executing this Deed, there is no pending or threatened litigation relating to the Property of which Grantor is aware; and iv. At the time of executing this Deed, no investigations or proceedings are now pending, and no notices, claims, demands, or orders have been received, arising out of any violation or alleged violation of, or failure to comply with, any federal, state, or local law, regulation, or requirement applicable to the Property or its use of which Grantor is aware. 19 23. Acceptance. Grantee hereby accepts without reservation the rights and responsibilities conveyed by this Deed. 24. General Provisions: a. Severability. If any provision of this Deed, or the application thereof to any person or circumstance, is found to be invalid, the remainder of the provisions of this Deed, or the application of such provision to persons or circumstances other than those as to which it is found to be invalid, as the case may be, shall not be affected thereby. b. 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. C. Waiver of Defenses. Grantor hereby waives any defense of laches, estoppel or prescription and acknowledges and agrees that the one -year statute of limitation provided under C.R.S. § 38 -41 -119 does not apply to this Easement, and Grantor waives any rights of Grantor pursuant to such statute. d. Controlling Law and Interpretation. This Easement shall be performed and broadly interpreted under the laws of State of Colorado, resolving any ambiguities and questions of the validity of specific provisions in favor of maintaining the Purpose of this Easement. Any decisions resolving such ambiguities shall be documented in writing. e. Counterparts. The parties may execute this instrument in two or more counterparts which shall, in the aggregate, be signed by all Parties; each counterpart shall be deemed an original instrument as against any party who has signed it; all counterparts, when taken together, shall constitute this instrument. f. Amendment. If circumstances arise under which an amendment to or modification of this Easement would be appropriate, Grantor and Grantee are free to jointly amend this Easement; provided that no amendment shall be allowed that will confer a private benefit to Grantor or any other individual greater than the benefit to the general public (see Treas. Reg. § 1. 1 70A- 14(h)(3)(i)) or result in private inurement for a Board member, staff or contract employee of Grantee (see Treas. Reg. § 1.501(c)(3)4(c)(2)), or affect the qualifications of this Easement under any applicable laws. Any amendment shall be consistent with Grantee's 20 policies, must have neutral or beneficial effect on the Property's Conservation Values, as determined by Grantee in its sole discretion, must be consistent with the Purpose, shall not affect the perpetual duration of this Easement, and shall be approved by Eagle County (if Grantor is not Eagle County). Grantor shall pay any and all costs, including staff time and attorney's fees associated with any amendment proposed by Grantor; provided that Grantee first provides Grantor with an estimate of such fee. Any amendment must be in writing, signed by both Parties, and recorded in the official records of Eagle County, Colorado. g. Entire Agreement. This instrument sets forth the entire agreement of the Parties with respect to the terms of this Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the terms of this Easement, all of which are merged herein. 25. Development Rights. Grantor herby grants to Grantee all development rights except as specifically reserved herein, and the Parties agree that such rights are terminated and extinguished unless reserved herein. 26. Recording. Grantor shall record this Deed in a timely fashion in the official real Property records of Eagle County, Colorado, and Grantee may re- record it at any time as may be required to preserve its rights in this Easement. 27. No Third Party Enforcement. This Deed is entered into by and between Grantor and Grantee and does not create rights or responsibilities for the enforcement of the terms of this Deed in any third parties except as expressly reserved herein. 28. Joint and Several Liability. If Grantor at anytime owns the Property in joint tenancy or tenancy in common, Grantor shall be jointly and severally liable for all obligations set forth in this Deed. 29. Ownership by Single Entity Consisting of Multiple Parties. If Grantor at any time is an entity which consists of shareholders, partners or members, such Grantor entity is required to include in its operating agreement, bylaws or other documents setting forth the rights and responsibilities of the entity, the right to assess or to otherwise collect payment from such shareholders, partners or members for any monetary or other obligations set forth in this Easement. Grantor shall provide a copy of such documentation at any time upon Grantee's request. 30. Environmental Attributes. Grantor hereby reserves all Environmental Attributes associated with the Property. "Environmental Attributes" shall mean any and all tax or 21 other credits, benefits, renewable energy certificates, emissions reductions, offsets, and allowances (including but not limited to water, riparian gas, beneficial use, and renewable energy), generated from or attributable to the conservation, preservation and management of the Property in accordance with this Easement. Nothing in this Section 30 shall modify the restrictions imposed by this Deed or otherwise impair the preservation and protection of the Conservation Values. 31. Annual Appropriation. To the extent that any financial obligation of this Deed is subject to the multiple fiscal year obligations as set forth in Article 10 of the Colorado Constitution or C.R.S. § 29 -1 -110, such obligation may be subject to annual appropriation by Grantor. The foregoing is not an agreement or an acknowledgement by either Grantor or Grantee that any financial obligation which could arise pursuant to this Deed would be subject to the requirement that funds for such financial obligation must be appropriated by Grantor. Nothing in this Deed shall be deemed to be a waiver of any rights that Grantee may have pursuant to C.R.S. § 30 -25 -104. Nothing in this Section 31 shall prevent Grantee from enforcing this Deed in accordance with its terms, despite a failure by Grantor to appropriate funds. 32. Mediation of Disputes. If Grantee or Grantor has an enforcement dispute as set forth in Section 9 of this Deed, or if Grantee denies a request by Grantor for approval pursuant to Section 18 of this Deed, Grantor may appeal Grantee's decision by requesting mediation with Grantee in a written notice to Grantee. Within ten (10) working days of the receipt of such request, the Parties shall select a single, trained, and impartial mediator with experience in conservation easements and other land preservation tools. Mediation shall then proceed in accordance with the following guidelines: a. Purpose. 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 not intended to result in any express or de facto modification or amendment of the terms, conditions, or restrictions of this Easement. b. Participation. The Parties agree that they will participate in the mediation process in good faith and expeditiously, attending all sessions scheduled by the mediator. Representatives of the Parties with settlement authority will attend mediation sessions as required by the mediator. 22 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. No statements made or documents prepared for mediation sessions shall be disclosed in any subsequent proceedings or construed as an admission of a Party in accordance with Colorado Rules of Evidence, Rule 408. d. Time Period. Neither Party shall be obligated to continue the mediation process beyond a period of sixty (60) days from the date of receipt of the initial request or if the mediator concludes that there is no reasonable likelihood that continuing mediation will result in a mutually agreeable resolution of the dispute. e. Costs of Mediation. Grantor shall pay all of Grantee's expenses associated with the mediation, including attorneys' fees and consultant fees, except that Grantor and Grantee shall share the cost of the mediator. 33. Force Majeure. Grantor shall not be obligated to send any prior notice to Grantee, and Grantee shall not be entitled to bring any action against Grantor, with respect to any prudent, good faith activity undertaken by Grantor to prevent, abate, or mitigate injury to the Property immediately before, during, or immediately following fire, flood, storm, earth movement, acts of war, and similar causes beyond the control of Grantor. Grantor will promptly inform Grantee of injury to the Property caused by such events or actions. TO HAVE AND TO HOLD, this Deed of Conservation Easement unto Grantee, its successors and assigns, forever. [SIGNATURE PAGES TO FOLLOW] 23 IN WITNESS WHEREOF, Grantor and Grantee, intending to legally bind themselves, have set their hands on the date first written above. GRANTOR: COUNTY OF EAGLE, STATE OF COLORADO by and throu its Board of County Co sioners By: r'- / Kathy andler- Henry, Chair STATE OF COLORADO ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this '1 day of t zL , 2015, by Kathy Chandler -Henry as Chair of the Board of County Commissioners of the County of Eagle, State of Colorado. Witness my hand and official seal. My commission expires: cQ 3 i ci E H E. GORDON ARY PUBLIC OF COLORADO ID #19994003113 Expoms February 13, 2019 T-- Notary Public 24 GRANTEE: EAGLE VALLEY LAND TRUST, a Colorado-non -profit corporation r i By: i n Daus, Executive Director STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this 9 day of 2015, by Jim Daus, Executive Director of the Eagle Valley Land Trust, a Colorado non -profit corporation. Witness my hand and official seal. My commission expires: Q I � 3 I =-`1 -i SHEILAH E. GORDON Notary Public NOTARY PUBLIC STATE OF COLORADO NOTARY ID *199NM13113 AM U rmslim E*w t me 25 EXHIBIT A Legal Description of the Property Lots 1, 2 and 3 and NEl /4SWl /4 of Section 7, Township 5 South, Range 82 West of the 6t' Principal Meridian, County of Eagle, State of Colorado. 26 EXHIBIT B Map of the Property 27 33$ FDMAIL EhDEgD Qbs. C fdlIlera Ridge .Parcel $ ': . GW col S�M� Properp Pateel BounAery I J �GR. ED c I r �F 9b0 d w 7W •�: Q y W 9 �.'777!lIYYYYYY CDR 3r e U� 4 O Y W 1 v ; U� r. T 3 S is 3 3 O R z S ''FAV. 9 r _ Exhibit B 27 EXHIBIT C Map of Existing Improvements Cordillera Ridge Parcel + Existing Improvements Q Cordillera Ridge Parcel Cordillera "Maintained Trail" Parcel Boundary Burried Irrigation Pipe r 0-*-f Irrigation Ditch O A X X X Fence Road I H+f Social Trail Bench Social Trail Blocked Cordillera Trail Sign Old Rock Formation * Cordillera Trailhead Scrap Pipe Pile Feat '00 160 320 " J J I l k'rC l k IF k 1 k i k � k i k r•►'k' Exhibit C 28 EXHIBIT D Map of the Trailhead Envelope Exhibit D 29 EXHIBIT E Sample Notice of Transfer of Property To: Eagle Valley Land Trust ( "Grantee ") From: [Insert name of fee owner] ( "Grantor ") Pursuant to Section 11 of the Deed of Conservation Easement recorded (date) under reception number , Grantee is hereby notified by Grantor of the transfer of the fee simple interest in the subject Property legally described in Exhibit A attached hereto effective [insert date of closing] to [insert name of new Grantor], who can be reached at [insert name, legal address, phone and fax number]. Also pursuant to Section 11 of the aforementioned Deed of Conservation Easement, a copy of the new ownership deed is attached. GRANTOR: By:_ Title: STATE OF COLORADO ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of 20_, by as of Witness my hand and official seal. My commission expires: Date: Notary Public 30