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HomeMy WebLinkAboutR12-004 Approving Conservation Easement and Plan Tract J Berry Creek Commissioner ( S L moved adoption of the following resolution: BOARD Ot COUNTY COMMISSIONERS COUNTY OF EAGLE, STATE OF COLORADO RESOLUTION NO. 2012- o�L� RESOLUTION APPROVING CONSERVATION EASEMENT, BASE LINE REPORT, AND MANAGEMENT PLAN ASSOCIATED WITH A PORTION OF TRACT J, OF THE BERRY CREEK/MILLER RANCH PUDAND AUTHORIZING ANY OF THE EAGLE COUNTY COMMISSIONERS TO EXECUTE ALL DOCUMENTS NECESSARY TO COMPLETE THE TRANSACTION WHEREAS, Eagle County, Colorado is the owner of Tract J, Berry Creek/Miller Ranch PUD, Eagle County, Colorado (hereinafter the "Property "); and WHEREAS, the Board desires to enter into a conservation easement with Eagle Valley Land Trust to permanently preserve the majority of the Property; and WHEREAS, as part of the conservation of the Property the Eagle County Commissioners (hereinafter the "Board ") and Eagle Valley Land Trust will approve a conservation easement, baseline report and enter into a management plan for operation and management of the Property; and WHEREAS, the Board wishes to ensure that any of the County Commissioners has the authority to execute all documents associated with the preservation of the Property including the conservation easement and related documents. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EAGLE, STATE OF COLORADO: THAT, the Board authorizes any Commissioner to execute on its behalf any and all necessary documents, instruments, papers or other forms necessary to conserve the Property. Such documents shall be in a form substantially similar to the documents as attached hereto and include, but shall not be limited to, the following documents: a. Conservation Easement for the Property attached hereto as Exhibit A; b. Management Plan for the Property attached hereto as Exhibit B; c. Base Line Agreement for the Property attached hereto as Exhibit C; and d. any other necessary documents which in the opinion of staff are required or desirable. THAT, the Board of County Commissioners finds, determines and declares that this Resolution is necessary for the public health, safety and welfare of the citizens of the County of Eagle, State of Colorado. MOVED, READ AND ADOPTED by the Board of County Commissioners of the County of Eagle, State of Colorado, at its regular meeting held this 11 day of I , 2012. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONERS ATTEST: 1 E444 e : o of '11'' •, $AD° * Jon Stavne County Commissioners Chairman 4• 10 1°111°11. :1--- Peter F. Runyon Commissioner �tl.�t11 Sara J. Fisher Commissioner Commissioner 1 t seconded adoption of the foregoing resolution. The roll having been called, the vote was as follows: Commissioner Stavney i C ommissioner Runyon y 11 Commissioner Fisher " This resolution passed by Z vote of the Board of County Commissioners of the County of Eagle, State of Colorado. &1 ` f IS After Recording Return to: Eagle Valley Land Trust P.O. Box 3016 Edwards, CO, 81632 Any time the Property is transferred by Grantor to any third party, Grantor shall notify Grantee of the transfer pursuant to the requirements of Section 15 of this Easement, and the third party shall pay a fee of 0.5% of the fair market value of the Property to Grantee, except when the transfer is to a governmental entity, in which case this fee shall be waived. This fee is excluded from the prohibition of C.R.S. §38 -22 -127, for the reasons described in Section 15 herein. DEED OF CONSERVATION EASEMENT Berry Creek- Miller Ranch Open Space This Deed of Conservation Easement (the "Easement ") made as of this day of , 2012, by Eagle County, a governmental entity and political subdivision of the State of Colorado, as distinct from the general public, acting by and through its Board of County Commissioners ( "BOCC "), having an address at 500 Broadway, Post Office Box 850, Eagle Colorado, 81631 -0850 ( "Grantor "), in favor of the EAGLE VALLEY LAND TRUST, a nonprofit Colorado corporation, having an address of P.O. Box 3016, Edwards, CO, 81632 ( "Grantee "). The following Exhibits are attached hereto and made a part of this Easement: Exhibit A - Legal Description of Property Exhibit B - Map of Property Exhibit C - Baseline Documentation Report Acknowledgement Exhibit D - Notice of Transfer of Property RECITALS: A. Whereas, Grantor is the sole owner in fee simple of approximately 32.533 acres of real property in Eagle County, Colorado, more particularly described in Exhibit A and generally depicted on Exhibit B, both attached hereto and incorporated herein by this reference (the "Property "); B. Whereas, the State of Colorado has recognized the importance of private efforts to conserve land in a natural, scenic, historic, agricultural, or open condition, and for wildlife habitat and other uses consistent with the protection of open land having undisturbed or restored environmental quality, by the enactment of Colorado Revised Statutes (C.R.S.) Sections 38- 30.5 -101 et seq. The conservation purposes of this Easement are recognized by the Colorado Wildlife and Parks and Outdoor Recreation statutes, C.R.S. Sections 33 -1 -101, et seq., which provide that "it is the policy of the State of Colorado that the wildlife and their environment and 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 to this State "; C. Whereas, the Property possesses significant ecological, wildlife habitat, scenic, aesthetic, and open space values, is a valuable element of the natural habitat of Eagle County and its ecological, scenic, and aesthetic values, including flora, fauna, and 1 ' soils, the maintenance of which habitat helps support wildlife and plant populations and communities including Bald Eagle, Black Bear, Elk, Mountain Lion, and Mule Deer, and is plainly visible to the public from Interstate 70 and Highway 6. The Conservation Values of the Property include relatively natural habitat, open space, and public access for education or recreation. The Property contains the relatively natural habitat of wetlands, riparian areas that provide food, shelter, breeding ground, and migration corridors for several wildlife species. The Eagle River serves as natural habitat for several species, including American Robins, Hummingbirds, House Wrens, Mottled Sculpins, the Northern Flicker, the Northern Leopard Frog, River Otters, and Brown & Rainbow Trout. The habitat on the Property is also "significant" as required by the Treasury Regulations, as it represents habitat for rare, endangered or threatened species such as Bald Eagles and Peregrine Falcons. The Property's open space will be preserved for the scenic enjoyment of the general public and will yield a significant public benefit. 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 Interstate 70, Highway 6, and the Eagle River, which are open to and actively utilized by residents of Eagle County and the State of Colorado. There is a foreseeable trend of intense development in the vicinity of the Property in the near future. The Property is in an increasingly developed area of unincorporated Eagle County where there is a strong likelihood that development of the Property would lead to, or contributes to the degradation of the scenic and natural character of the area. Preservation of the Property will continue to provide an opportunity for the general public to appreciate its scenic values, which is a significant public benefit. The terms of the Easement do not permit a degree of intrusion or future development that would interfere with the essential scenic quality of the land. The Property is available for public low - impact recreational uses such as biking, bird watching, cross - country skiing, fishing, picnicking and hiking. The conservation values set forth in this paragraph may herein be collectively referred to as the "Conservation Values ". These Conservation Values are of great importance to Grantor, Grantee, the people of Eagle County and the State of Colorado and are worthy of preservation; D. Whereas, Grantor intends that the Property be maintained as scenic open space, relatively natural habitat, and used as a passive recreation and educational area for the enjoyment of the public; E. Whereas, the following local policies and resolutions support the conservation of the Property: The Property and its use are consistent with Eagle County's 2005 Comprehensive Plan which became effective January 18, 2006 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; 2 The voters of the State of Colorado by adoption of Article XXVII to the Constitution of the State of Colorado, the legislature of the State of Colorado by adoption of enabling legislation, and the State Board of the Great Outdoors Colorado Trust Fund, by adopting and administering competitive grants application and rigorous due diligence review processes, have established that it is the policy of the State of Colorado and its people to preserve, protect, enhance and manage the state's wildlife, park, river, trail and open space heritage, to protect critical wildlife habitats through the acquisition of lands, leases or easements, and to acquire and manage unique open space and natural areas of statewide significance. F. Whereas, the specific Conservation Values, characteristics, current uses, status of improvements, and present condition of the Property are documented in a inventory of the Property, dated 6/17/2011, entitled "Berry Creek — Miller Ranch Open Space Conservation Easement, Baseline Documentation Report", which inventory is on file with Grantor and at the office of Grantee and incorporated by this reference. The inventory consists of reports, maps, photographs, and other documentation that the parties agree provide, collectively, an accurate representation of the condition of the Property at the time of this grant ("Baseline Documentation Report "), and which inventory is intended to serve as an objective information baseline for monitoring compliance with the terms of this grant and is not intended to preclude the use of other evidence to establish the condition of the Property if there is a controversy over its use. G. Whereas, Grantee is a qualified private organization under the terms of C.R.S. Sections 38- 30.5 -101, et seq., a "qualified organization" within the meaning of Section 170(h)(3) of the Internal Revenue Code of 1986 as amended (the "Code "), a "charitable organization" as described in Section 501(c)(3) of the Code, and a "publicly supported organization" as described in Section 170(b)(1)(A) of the Code, whose primary purpose is to preserve and protect the natural, scenic, agricultural, historical, and open space resources of 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. Grantee also is a qualified recipient for a conservation easement under C.R.S. §38- 30.5 -104, and 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), for the current year. Additionally, at this time Grantee is accredited by the Land Trust Accreditation Commission, a national accreditation program sponsored by the Land Trust Alliance. AGREEMENT: NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and the mutual covenants, terms, conditions, and restrictions contained herein, and pursuant to the laws of Colorado and in particular C.R.S. Sections 38- 30.5 -101, et seq., Grantor hereby voluntarily grants and conveys to Grantee a perpetual conservation easement in gross ( "Easement "), and Grantee agrees by accepting this Easement to honor the intentions of Grantor stated herein and to preserve and protect in perpetuity the 3 Conservation Values of the Property for the benefit of this and future generations, subject to, and without affecting, any currently- existing easements, reservations, restrictions, covenants, agreements and rights of way of record and other rights of third parties under Colorado statutory or common law (collectively "Existing Third -Party Easements "). 1. Purpose It is the purpose of this Easement to protect and preserve the Conservation Values of the Property, to assure that the Property will be retained forever predominantly in its natural, scenic, forest, and open space condition, and to prevent any use of the Property that is inconsistent with the preservation and protection of the Conservation Values of the Property. It is Grantor's intent to convey this Easement to Grantee to ensure that the Conservation Values of the Property be preserved and protected forever. It is the parties' intent to permit uses of the Property that are not inconsistent with the preservation and protection of the Property's Conservation Values, as determined by Grantee in its 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. Nothing in this Easement is intended to compel a specific use of the Property other than the preservation and protection of the Property's Conservation Values. 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. 2. Baseline Documentation Report The parties acknowledge that the Baseline Documentation Report has been prepared, reviewed, and approved by Grantee and Grantor. A copy of the Baseline Documentation Report is on file with both Grantor and Grantee and is by this reference made a part hereof. The parties acknowledge that the Baseline Documentation Report is intended to establish the condition of the Property subject to the Easement as of the date written above (the "Operative Date ") and that both Grantor and Grantee have acknowledged in a signed statement, a copy of which is attached hereto as Exhibit C, that the Baseline Documentation Report accurately represents the condition of the Property on the Operative Date. The parties agree that, in the event a controversy arises with respect to the condition of the Property as of the Operative Date, or with respect to compliance with or violation of any term or provision of this Easement, the parties shall not be precluded from utilizing all other relevant or material documents, surveys, reports, and other information to determine the condition of the Property as of the Operative Date. 3. Rights of Grantee To accomplish the purpose of this Easement the following rights are conveyed to Grantee by this Easement: 3.1. To preserve and protect the Conservation Values of the Property; 4 3.2. To enter upon the Property at any time in order to monitor Grantor's compliance with and otherwise enforce the terms of this Easement in accordance with Section 8 including in cases where Grantee determines that immediate entry is required to prevent, terminate, or mitigate a violation of this Easement; 3.3. To prevent any activity on or use of the Property that is inconsistent with the purpose of this Easement and to require the restoration of such areas or features of the Property that may be damaged by any inconsistent activity or use, all as more fully set forth herein; 3.4. 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 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. 4. Permitted and Prohibited Uses of the Property The following uses and practices, though not an exhaustive recital, are consistent with the Easement as subject to specified qualifications, conditions, and requirements of and procedures for prior notice to or approval of Grantee. Procedures for prior approval and notice are listed below in Section 7 herein. Any activity on or use of the Property inconsistent with the preservation and protection of the Conservation Values of the Property is prohibited. 4.1. Improvements. Grantor may maintain, repair, enlarge, and replace improvements in accordance with the standards set forth in these subsections and in a manner and with a result that is not inconsistent with the preservation and protection of the Property's Conservation Values. Grantor shall notify Grantee in writing of such construction and provide Grantee with documentation and plans necessary to ensure compliance with the standards set forth in these subsections. 4.2. Construction of New Buildings and Other Structures. The construction of any building or other structure on the Property is prohibited, except that one, new, minor unenclosed, improvement such as a gazebo, or -open air educational structure may be constructed on the Property. All new structures will comply with all applicable laws, ordinances, and regulations and shall not be taller than 15 feet in height or bear a footprint greater than 500 square feet. Except for Existing Third -Party Easements, agreements and matters of record, no residential, commercial, industrial, or retail improvements shall be permitted on the Property, including but not limited to: communication facilities, telecommunication facilities, or any other facilities, equipment, or material that may be used for telecommunications or to provide such services, including cellular phone signal transmission towers; aircraft facilities or aircraft landing facilities; golf courses; athletic fields; commercial feed lots; meat or poultry processing facilities; waste storage or waste processing facilities; commercial nurseries; sawmills, or logging facilities; agricultural product retail outlets; and other similar agricultural facilities; restaurants; night clubs; campgrounds; trailer park motels, hotels, recreational vehicle facilities; commercial swimming pools, gas stations, or retail outlets or facilities for the manufacture or distribution of any product. For the purposes of this Easement, a 5 commercial "feed lot" shall be defined as a permanently constructed confined area or facility within which the land is not grazed or cropped annually, for the purpose of engaging in the business of the reception and feeding of livestock for hire. Benches, picnic tables, and wildlife resistant trash containers may be placed on the Property with the Grantee's approval, not to be unreasonably withheld, provided that their placement must comply with all applicable laws, ordinances, and regulations. Grantor may maintain, repair, and replace these benches, tables and trash containers in accordance with the standards set forth in this Section and in a manner and with a result that is not inconsistent with the preservation and protection of the Property's Conservation Values. Grantor shall notify Grantee in writing of the placement or replacement of any such improvements and provide Grantee with documentation so that it may update its records to reflect the placement or replacement of any new improvements. 4.3. Subdivision. The division, subdivision, or de facto division of the Property, physically, or by legal process, including partition, or by any other action (including entering into any lease or other agreement) is strictly prohibited. The Property shall be conveyed only in its entirety as a single parcel. Adjustments to boundaries or resulting from boundary disputes shall be excluded herefrom, provided that any such adjustment does not result in a saleable, buildable lot. 4.4. Utilities. Except for utility easements in existence prior to the grant of this Easement, or for utility easements created subsequent to the grant of this Easement pursuant to paragraph 4.22 hereof or an exercise of eminent domain, no new utility transmission lines shall be constructed or permitted on the Property except as necessary to service structures permitted on the Property. All new utilities shall be placed underground, unless mutually agreed upon by Grantor and Grantee. 4.5. Telecommunications Facilities. Except for telecommunication facilities in existence prior to the grant of this Easement, the erection, construction, installation, relocation, or use of a communication facility, telecommunication facility, network element, telecommunication equipment, or any other equipment or material that may be used for telecommunications or to provide telecommunications services (except for customer premises equipment) as such terms are defined in The Federal Telecommunications Act of 1996, is prohibited. 4.6. Recreation. Grantor and Grantee hereby agree that public access to and use of the Property for low- impact recreational uses such as biking, fishing, picnicking, bird watching, cross - country skiing, and hiking, are permitted. The Management Plan shall set forth general guidelines for recreational uses occurring on the Property. 4.7. Aircraft Facilities. Grantor shall not construct or erect any aircraft facilities or aircraft landing strips, pads, or facilities on the Property. 4.8. Roads, Trails, and Paving. Except as set forth in Existing Third -Party Easements, Grantor shall not construct any new roads, trails or pave any portion of the Property without Grantee's consent, not to be unreasonably withheld, provided that all new roads, trails and paved portions of the property comply with all applicable laws, ordinances, and regulations, and are completed in a manner that is not inconsistent with the preservation and protection of the Property's Conservation Values. Notwithstanding the foregoing, the parties acknowledge that Grantor may extend its regional trail through a portion of the 6 Property subject to notice and approval as set forth in Section 7 hereof. Grantor may improve existing trails in order to comply with ADA trail guidelines, provided that any improvements comply with all applicable laws, ordinances, and regulations, and are completed in a manner that is not inconsistent with the preservation and protection of the Property's Conservation Values. 4.9. Off -Road Vehicle Use and Impact. Grantor shall not use vehicles off of existing roads and travel ways in a manner that may result in erosion or compaction of the Property's soils, ,detrimental impact on the natural appearance of the land, or interfere with vegetation or natural habitats of those animal species occurring on the Property. Notwithstanding the foregoing, Grantor's use of off -road vehicles may be necessary in forest management, emergency situations, or for protection and enhancement of wildlife habitat, and such limited use by Grantor is therefore expressly permitted, provided that Grantor shall make its best efforts to avoid and minimize uses and impacts of uses that are inconsistent with the preservation and protection of the Conservation Values of the Property. Grantor's use of off -road vehicles, including but not limited to snowmobiles, all terrain vehicles, or other vehicles shall not disturb or result in the harassment of wildlife, and public use of off-road vehicles such as snowmobiles or all- terrain vehicles is prohibited. Public use of off -road vehicles such as snowmobiles or all- terrain vehicles shall be addressed in the Management Plan. Those with Existing Third -Party Easements which allow the use of motorized vehicles, may use motorized vehicles, including • without limitation all- terrain vehicles and ranching, agricultural, equipment and construction vehicles (i) on any Roads, and (ii) on any portion of the Property that is not a Road, provided that such vehicles shall be used only for construction and property management purposes, including but not limited to, maintenance of trails, utilities, drainage facilities, water facilities, wildlife ponds, weed control and any ditches on the Property. Notwithstanding the foregoing, Grantor shall have the right to permit motorized access on trails in order to comply with the ADA. 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. Disturbance by Existing Third Party Easement holders shall be governed by the terms of the Existing Third Party Easements or statutory or common law rights and obligations; provided however that Grantor shall not enter into an agreement permitting Existing Third party Easement holders to disturb the Property without requiring restoration of the Property to a condition as close to its original condition as reasonably practicable. 4.10. Mineral Activities. Except for Existing Third -Party Easements, at the time of granting the Easement, Grantor owns all the minerals associated with the Property. The exploration, development, mining, or extraction of oil, gas, and other minerals, rock, gravel, coal, peat, soil, or sand found in, on, or under the Property is prohibited except as set forth in Existing Third -Party Easements. The exploration, development, mining or extraction of geothermal resources and hydrocarbons from the Property is prohibited. Grantor shall not transfer, lease, or otherwise separate soil, sand, gravel, rock, or any other mineral substance from the surface of the Property. 4.11. Signs. Grantor shall not construct, maintain, or erect any commercial signs or billboards on the Property. Small signage not to exceed 4 square feet is permitted to display and state the name of the owner and Property, that the area is protected by this Easement, the prohibition of any unauthorized entry or use, wildlife and ecological characteristics related to educational opportunities, directional signs, and the 7 advertisement for the sale of the Property. Signage bearing the name of the conserved Property shall also be permitted, provided that it shall not exceed 20 square feet and is limited to one, and is comprised of natural looking materials. 4.12. Fences. Existing fences may be repaired, replaced, and improved on the Property and new fences may be constructed anywhere on the Property for the purpose of management of wildlife, provided that all fences are compliant with then - current Colorado Division of Wildlife standards for fencing to permit migration of wildlife across the Property in a wildlife migration area and are not inconsistent with the preservation and protection of the Conservation Values of the Property. Grantee acknowledges that the Grantor may wish to construct fencing along the ditches located on the Property which fencing will be included in the Management Plan. 4.13. Trash. Grantor shall not permanently accumulate, dump, or otherwise dispose of trash, debris, ashes, sawdust, and other non - compostable refuse on the Property. Refuse generated by forest management activities associated with the protection and enhancement of wildlife habitat, is permitted. 4.14. Hazardous Materials. The storage, dumping, or other disposal of toxic or hazardous materials or of non - compostable refuse on the Property is prohibited. Notwithstanding anything in this Easement to the contrary, this prohibition does not make Grantee an owner of the Property, nor does it permit Grantee to control any use of the Property by Grantor that may result in the storage, dumping or disposal of hazardous or toxic materials; provided, however, that Grantee may bring action to protect the Conservation Value of the Property, as described in this Easement. (This prohibition does not impose liability on Grantee, nor shall Grantee be construed as having liability as a "responsible party" under CERCLA or similar federal or state statutes.) 4.15. 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. The parties acknowledge that the irrigation ditches on the Property provide the water necessary to irrigate significant portions of the Berry Creek/Miller Ranch Planned Unit Development and other property. As a result, Grantor may develop and maintain those water resources on the Property necessary or desirable for irrigation as indicated above, or dictated by any change in water rights, and for wildlife, fisheries, and recreational pursuits conducted thereon including, but not limited to stream bank stabilization and the right to locate, construct, install and maintain pumps, headgates, ditches, wells, and ponds, and to improve the quality and quantity of water available for the purposes permitted herein. Grantor is required to notify Grantee of these activities as set forth in Section 7. The pollution of any surface or sub - surface water on the Property is prohibited. 4.15.1 Irrigation Ditches. Notwithstanding anything to the contrary herein, the parties acknowledge the existence of irrigation ditches on the Property which ditches may subject the Property to easements and other rights in Grantor and in third parties under Existing Third -Party Easements and Colorado statutory or common law. Grantor and Existing Third Party Easement holders are permitted the rights under existing easements or Colorado statutory or common law including the right to maintain, clear brush, or 8 install pumps, wells, and pipes, to transport such ditch water provided that the location of such pipes shall be within the existing ditch easement or right of way. 4.16. Water Rights. There are no water rights included in, with, or encumbered by this Easement as necessary to support the Property's Conservation Values. 4.17. Surface Disturbance. Unless otherwise set forth herein, Grantor shall not change, disturb, alter, excavate, or impair any watercourse or wetland on the Property. Except as expressly permitted by this Easement, any alteration of the surface of the land, including without limitation, the movement, excavation or removal of soil, sand, gravel, rock, peat or sod that is inconsistent with the preservation and protection of the Conservation Values, is prohibited. 4.18. Timber Harvesting. Grantor may cut or prune trees and brush on the portions of the Property, cut posts and poles for use on the Property, and remove timber to abate disease, insect infestation, mitigate forest fires, and maintain a healthy forest ecosystem. Grantor may remove trees that constitute a hazard to persons, property, and existing roads or ditches. Grantor shall notify Grantee, as set forth in Section 7, of the above activities. Grantor is prohibited from commercially harvesting timber, or cutting trees for any commercial or business purpose on the Property, except that Grantor may sell trees that have been cut due to disease, to prevent spread of disease, or to thin parts of the forest in order to increase the health of the forest ecosystem. Grantor shall not cut or disturb any trees or other vegetation within three hundred (300) feet of any active raptor nest during the nesting season, or remove any crown trees or overstory vegetation within three hundred (300) feet of any active raptor nest at any time. Notwithstanding the foregoing, diseased trees may be cut down and removed during the non - nesting season to abate insect infestations. 4.19. Weeds and Non - native Species. Grantor has the responsibility to control weeds in a manner consistent with state laws, subject to the following: (i) all control techniques shall be consistent with the labeled instructions of the application materials to constitute the minimum necessary to control or eradicate the weeds, and not be inconsistent with the preservation and protection of the Conservation Values of the Property; (ii) aerial application of any weed control is prohibited without Grantee's prior written approval; and (iii) biological (insect) control of weeds that is not inconsistent with the preservation and protection of the Conservation Values of the Property shall be permitted as consistent with the purposes of this Easement. Grantor shall not introduce to the Property any non- native plant or animal species 4.20. Hunting and Fishing. The public may fish in a manner consistent with state and federal laws and regulations, at levels of intensity which are not detrimental to the wildlife and fishery populations. Grantor shall not itself conduct commercial hunting, outfitting, or guiding on the Property, nor permit any commercial hunting, outfitting, or guide service to operate on the Property. 4.21. Wildlife Disturbance or Harassment. Harassment of wildlife by people on foot or in vehicles, or by domestic animals, excluding permitted fishing activities, is prohibited. 4.22. Easements, Rights of Way or Other Interests. The conveyance or modification of an easement, right of way, or other similar interest is prohibited without Grantee's approval pursuant to Section 7 (concerning notice and approval) of this Deed. 9 5. Land 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 issues addressed in the Management Plan or as otherwise set forth in this Deed. 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 until Grantor has first prepared an amended Management Plan. 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. Any amendment to the Management Plan shall be approved by Grantee in accordance with Section 7 concerning Grantor's notice and approval. 6. Reserved Rights Grantor reserves to itself, and to its successors, and assigns, all rights accruing from its ownership of the Property, including the right to engage in, or permit or invite others to engage in, all uses of the Property that are not expressly prohibited herein and that are not inconsistent with the protection and preservation of the Conservation Values of the Property. 7. Notice and Approval 7.1. Notice of Intention to Undertake Certain Permitted Actions. The purpose of requiring Grantor to notify Grantee prior to undertaking certain permitted activities provided in Section 4 is to afford Grantee an adequate opportunity to review or monitor the proposed activity or use to ensure that it is designed and carried out in a manner that is not inconsistent with the preservation and protection of the Conservation Values of the Property. Whenever notice is required, Grantor shall notify Grantee in writing by certified mail not less than thirty (30) business days prior to the date Grantor intends to undertake the activity or use in question. The notice shall describe the nature, scope, design, location, timetable, and any other material aspect of the proposed activity or use in sufficient detail to permit Grantee to make an informed judgment as to its consistency with the preservation and protection of the Conservation Values of the Property. 7.2. Grantee's Approval. Where Grantee's approval is required, as set forth in Section 4, Grantee shall grant or withhold its approval in writing within thirty (30) days of receipt of Grantor's written request therefore which must comply with paragraph 7.1. 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 (30) day period, and Grantee shall have an additional thirty (30) days from the receipt of such additional information to approve or deny Grantee's request 10 in writing. If Grantee does not respond to Grantor's written request within thirty (30) calendar days of receipt, the request shall be deemed denied, provided however, that if 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 18.18. 8. Grantee's Remedies 8.1. Enforcement. If Grantee finds what it believes is a violation of the terms of this Deed, Grantee shall immediately notify Grantor in writing of the nature of the alleged violation ( "Notice of Violation "). Upon receipt of the Notice of Violation, Grantor shall immediately discontinue the activity or use that has caused the alleged violation and shall either: (a) restore the Property to its condition prior to the violation in accordance with a written restoration plan ( "Restoration Plan"); (b) provide a written explanation to Grantee of the reason why the alleged violation should be permitted; or (c) when violations are caused by the public or third parties, Grantor shall provide Grantee with a written plan which discusses the nature of the alleged violation and enforcement options and alternatives (also, a "Restoration Plan"). If the condition described in clause (a) or (c) above occurs, the Restoration Plan shall be submitted to Grantee within twenty (20) days after Grantee's receipt of the Notice of Violation, or within a longer time period if so specified by Grantee in the Notice of Violation or agreed to by Grantor and Grantee in writing. If applicable, the Restoration plan shall be approved or disapproved by Grantee in writing within thirty (30) days after its submittal. If Grantee fails to respond in writing within thirty (30) days after Grantor's submittal to Grantee of a Restoration Plan, the Restoration Plan shall be deemed approved. Grantor shall begin restoring the Property, or taking steps to address violations by the public or third parties, in accordance with the Restoration Plan within ten (10) days after it is approved or deemed approved by Grantee and diligently pursue such cure to completion in compliance with the terms of the approved Restoration Plan. If the condition described in clause (b) above occurs, both parties agree to meet within thirty (30) days to resolve this difference. If the parties are unable to resolve the dispute at the meeting, Grantee may, at its discretion, take appropriate legal action and shall be entitled to recover damages including, without limitation, damages for the loss of scenic, aesthetic, recreational or environmental values. If after receipt of the Notice of Violation, Grantor continues the activity or use that cause the alleged violation or if a court with jurisdiction determines that a violation is imminent, exists, or has occurred, Grantee may get an injunction to stop it, temporarily or permanently prior the parties meeting and prior to completion of the Restoration Plan. A court may also issue an injunction to require Grantor to restore the Property to its condition prior to the violation, and may order Grantor to pay any restoration costs necessitated by Grantor's violation of the terms of this Deed. 8.2. Costs of Enforcement. All reasonable costs incurred by Grantee in enforcing the terms of this Easement against Grantor, including without limitation, costs and expenses of suit and reasonable attorneys' fees, costs of necessary supporting documentation, such as land surveys, and any cost of restoration necessitated by Grantor's violation of the 11 terms of this Easement, shall be borne by Grantor; provided, however, that if Grantor ultimately prevails in a judicial enforcement action, each party shall bear its own costs. 8.3. Forbearance. Forbearance by Grantee to exercise its rights under this Easement in the event of Grantor's breach of any term of this Easement shall not be deemed or construed to be waiver by Grantee of such term or of any subsequent breach of the same, or any other term of this Easement, or of any of Grantee's rights under this Easement. No delay or omission by Grantee in the exercise of any right or remedy related to Grantor's breach shall impair such right or remedy, or be construed as a waiver. 8.4. Waiver of Certain Defenses. Grantor hereby waives any defense of laches, estoppel, or prescription, and any defense available pursuant to C.R.S. §38 -41 -119. 8.5. Acts Beyond Grantor's Control. Nothing contained in this Easement shall be construed to entitle Grantee to bring action against Grantor for any injury or damage to, or change in the Property resulting from natural causes, acts of God, or natural acts beyond Grantor's control, including without limitation, fire, flood, storm, and earthquakes, or from injury or damage to, or change in the Property resulting from, any prudent and reasonable action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury or damage to the Property resulting from such causes. 9. Access Nothing contained herein shall be construed as affording the public access to any portion of the Property. The parties acknowledge that Grantor intends to permit access to the general public in accordance with the terms of this Deed and the Management Plan which may, among other things, include seasonal or other closures of the Property. 10. Grantor Responsibilities 10.1. Costs, Legal Requirements, and Liabilities. Grantor retains all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance, of the Property, including the maintenance of adequate liability insurance coverage and weed control and eradication, and shall furnish Grantee with satisfactory evidence of insurance coverage upon request. Grantor remains solely responsible for obtaining any applicable governmental permits and approvals for any construction or other activity or use permitted by this Easement, and all such construction or other activity or use shall be undertaken in accordance with all applicable federal, state, and local laws, regulations, and requirements. Grantor shall keep the Property free of any liens arising out of any work performed for, material furnished to, or obligation incurred by Grantor. Grantor does not waive or intend to waive the limitations of liability which are provided to it under the Colorado Governmental Immunity Act, C.R.S. 24-10 - 101 et. seq. 10.2. 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 and shall pay before delinquency all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Property by competent authority (collectively "taxes "), including any taxes imposed upon, or incurred 12 as a result of, this Easement, and shall furnish Grantee with satisfactory evidence of payment upon request. 10.3. Representation and Warranties. Grantor represents upon information and belief: A. 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; B. 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; C. At the time of executing this Deed, there is no pending or threatened litigation relating to the Property of which Grantor is aware; and D. 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. E. Grantor warrants that Grantor has good and sufficient title to the Property, free from all liens and encumbrances except Existing Third -Party Easements and other interests of record. 10.4. Control. Nothing in this Easement shall be construed as giving rise to, in the absence of a judicial decree, any right or ability in Grantee 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. 10.5. 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 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 the Easement. Grantor shall continue to be solely responsible and shall have the 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. 10.5.1 No Liability. Grantee shall not be liable for injury or damages occurring on, or arising from, the Property unless due solely to the gross negligence or intentional acts of 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 13 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 11. Extinguishment and Condemnation 11.1. Extinguishment. If circumstances arise in the future that render the purpose of this Easement impossible to accomplish, this Easement can only be terminated or extinguished, whether in whole or in part, by judicial proceedings in a court of competent jurisdiction. If the Easement is extinguished or terminated, whether in whole or in part, Grantee shall be paid proceeds equal to the Proceeds Percentage as defined in paragraph 11.2. Grantee's use of the proceeds shall be in a manner consistent with its conservation Purpose. In granting this Easement, Grantor has considered the possibility that uses prohibited by the terms of this Easement may become more economically valuable than permitted uses, and that neighboring properties may in the future be put entirely to such prohibited uses. It is the intent of both Grantor and Grantee that any such changes shall not be deemed to be circumstances justifying the termination or extinguishment of this Easement. In addition, the inability of Grantor, or its heirs, successors, or assigns, to conduct or implement any or all of the uses permitted under the terms of this Easement, or the unprofitability of doing so, shall not impair the validity of this Easement or be considered grounds for its termination or extinguishment. 11.2. Valuation. This Easement constitutes a real property interest immediately vested in Grantee, which, for the purpose of subsection 11.1, the parties stipulate to have a fair market value of 30% of the full fair market of the Property, which percentage is determined by dividing the value of the Easement at the time of this grant by the fair market value of the Property unencumbered by the Easement at the time of this grant (excluding any increase in value after the date of this grant attributable to improvements made thereafter), and which percentage shall remain constant ( "Proceeds Percentage ") . 11.3. Condemnation. 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 proceeds as a real property interest holder. Grantee may pursue any remedies in law or in 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 Condemnation equal to thirty percent of the total proceeds received by Grantor. 11.4. Application of Proceeds. Grantee shall use any proceeds received under the circumstances described in this Section 11 in a manner consistent with its conservation mission, which is exemplified by this grant. 12. Assignment Grantee may assign its rights and obligations under this Easement to an organization that is: (a) a qualified organization at the time of transfer under Section 14 170(h) of the Internal Revenue Code of 1986, as amended (or any successor provision then applicable), and the applicable regulations promulgated thereunder, and (b) authorized to acquire and hold conservation easements under Colorado law. As a condition of such transfer, Grantee shall require the transferee to expressly agree, in writing, to carry out and uphold the conservation purposes of this Easement and otherwise assume all of the obligations and liabilities of Grantee set forth herein or created hereby. Grantee shall obtain Grantor's consent (and Eagle County's consent if Eagle County no longer owns the Property) to any such assignment in advance of any proposed transfer. After such transfer, Grantee shall have no further obligation or liability under this Easement except for those obligations or liabilities arising prior to the date of assignment. If Grantee is unable to transfer the Easement to another organization because it is no longer incorporated or functioning in furtherance of its original mission, a court with jurisdiction shall transfer the Easement to another qualified organization having similar purposes, which organization agrees to assume the responsibilities imposed on Grantee by this Easement. 13. 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 consistent with the Purpose of this Easement, provided that any amendment have a neutral or beneficial effect on the Property's Conservation Values, as determined by Grantee in its sole discretion. No amendment shall be permitted that shall affect the Easement's perpetual duration, permit uses of the Property inconsistent with the Easement's Purpose or the protection and preservation of the Property's Conservation Values, or affect the status of Grantee under any applicable laws, including C.R.S. Section 38- 30.5 -101, et seq., or Section 501(c) (3) of the Code, Treasury Regulation 1.501(c) (3) -1(c) (2), or any other regulations promulgated thereunder. No amendment shall be permitted that will confer a private benefit to Grantor or any other individual or entity greater than the benefit to the general public as described by Treasury Regulation Section 1.170A -14(h) (3) (i)), or result in private inurement to a Board member, staff or contract employee of Grantee pursuant to Treasury Regulation 1.501(c) (3) -1(c) (2)). Any amendment shall be approved by Eagle County (if Grantor is not Eagle County). Any amendment to this Easement shall be recorded in the official records of Eagle County, Colorado. Grantor shall pay any and all costs, including staff time and attorney fees associated with any amendment provided that Grantee first provides Grantor with an estimate of such fees. 14. Liens on the Property 14.1. Subsequent Liens. No provisions of this Easement should be construed as impairing the ability of Grantor to use this Property as collateral for subsequent borrowing, provided that any mortgage or lien arising from such borrowing shall be subordinated to this Easement and shall encumber the entire Property. 15. Subsequent Transfers Grantor agrees to incorporate the terms of this Easement by reference in any deed or other legal instrument by which it divests itself of any interest in all or a portion of the 15 Property, including, without limitation, a leasehold interest. Grantor further agrees to give written notice to Grantee of the transfer of any interest in the Property at least twenty (20) days prior to the date of such transfer using the form in Exhibit D attached hereto. Any time the Property is transferred by Grantor to any third party, excluding a government entity, the third party shall pay a transfer fee of 0.5% of the fair market value of the Property to Grantee, as holder of the property interest and right of possession represented by this Easement, to be used for monitoring, stewardship, defense, and enforcement of this Easement or other conservation easements that Grantee holds, or for other purposes consistent with Grantee's own purpose. This fee is excluded from the prohibitions of C.R.S. §38 -22 -127 because Grantee is a tax - exempt 501(c) (3) organization and the Property is non - residential. This provision is intended to run with the land for the lesser of perpetuity or the duration of the Easement, and to touch and concern the Property burdened by this Easement by providing Grantee a contribution to enable its stewardship, enforcement, and defense of the Easement. The failure of Grantor to perform any act required by this Section shall not impair the validity of this Easement or limit its enforceability in any way. If the contribution is not paid to Grantee at the time of sale or transfer as provided herein, the unpaid amount shall bear interest at the rate of eighteen percent (18 %) per annum from the date of sale or transfer until paid in full, and shall constitute the personal obligation of the Property's purchaser /owner or recipient, and shall be a lien and security interest on the title to the Property which may be foreclosed by Grantee in the same manner as a mortgage on real property. The Property's delinquent purchaser /owner or recipient shall also be responsible for costs and attorneys' fees incurred by Grantee in collecting said unpaid contribution, whether by efforts short of collection action or foreclosure, collection action in the courts or a foreclosure action. 16. Notices Any notice, demand, request, consent, approval, or communication that either party desires or is required to give to the other shall be in writing and either served personally or sent by first class mail, return receipt requested, postage prepaid, addressed as follows: EVLT: P.O. Box 3016, Edwards, CO, 81632 EAGLE COUNTY: P.O. BOX 850, 500 Broadway, Eagle, CO 81631 With a copy to: Eagle County Attorney's Office Post office Box 850, 500 Broadway, Eagle, CO 81631 16 17. Recordation Grantee 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. 18. General Provisions 18.1. Controlling Law. The interpretation and performance of this Easement shall be governed by the laws of the State of Colorado. 18.2. Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Easement shall be liberally construed in favor of the grant to effect the purpose of the Easement to protect and preserve the Conservation Values of the Property in perpetuity, and the policy and purpose of C.R.S. Sections 38- 30.5 -101 et seq. Any decisions resolving ambiguities shall be documented in writing. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the purpose of this Easement that would render the provision valid and ensure continuation of the purposes of the Easement and the preservation and protection of the Conservation Values of the Property shall be favored over any interpretation that would render it invalid. The common law rules of disfavoring restrictions on the use of real property and construing restrictions in favor of the free and unrestricted use of real property shall not apply to interpretations of this Easement or to disputes between the Parties concerning the meaning of particular provisions of this Easement. 18.3. Severability. If any provision of this Easement, or the application thereof to any person or circumstances, is found to be invalid, the remainder of the provisions of this Easement, or the application of such provision to person or circumstances other than those as to which it is found to be invalid, as the case may be, shall not be affected thereby. 18.4. Entire Agreement. This instrument sets forth the entire agreement of the parties with respect to the Easement and supersedes all prior discussions, negotiations, understandings, or agreement relating to the Easement, all of which are merged herein. 18.5. No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Grantor's title in any respect. 18.6. Joint Obligation. If more than one owner owns the Property at any time, the obligations imposed by this Easement upon the owners shall be joint and several. 18.7. Successors. The covenants, terms, conditions, and restrictions of this Easement shall be binding upon, and inure to the benefit of, the parties hereto and their respective personal representatives, heirs, successors, and assigns and shall continue as a servitude running in perpetuity with the Property. 18.8. Termination of Rights and Obligations. A party's rights and obligations under this Easement terminate upon transfer of the party's interest in the Easement or Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer. 17 18.9. Captions. The captions in this instrument have been inserted solely for convenience of reference, are not a part of this instrument, and shall have no effect upon construction or interpretation. 18.10. Counterparts. The parties may execute this instrument in two or more counterparts, which shall, in the aggregate, be signed by both parties; each counterpart shall be deemed an original instrument as against any party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. 18.11. 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 documents executed in the future affecting this Deed of Conservation Easement. 18.12. Terms. The terms "Grantor" and "Grantee ", wherever used herein, or any pronoun used in place thereof, shall include, respectively, the above -named Grantor and its personal representatives, heirs, successors, and assigns, and the above -named Grantee and its successors and assigns. The term "Property ", wherever used herein, shall refer to the land described in Exhibit A. 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. 18.13. Exhibits. All references to exhibits herein shall incorporate such exhibits by their reference. 18.14. Development Rights. Grantor hereby grants to Grantee all development rights except as specifically reserved herein, for the limited purpose of ensuring that such rights are forever terminated and extinguished, and may not be used by Grantor, Grantee, or any other party, either on the Property or transferred off of the Property to any other property adjacent or otherwise. Under no circumstances shall the Property be used as a "remainder parcel" or in any other way for the purpose of calculating or giving credits that result in additional density of development, beyond what is allowed in this Easement, on or off of the Property. 18.15. No Third Party Enforcement. This Easement is entered into solely by and between Grantor and Grantee, and as such does not create rights or responsibilities for the enforcement of the terms of this Easement in any third parties, including the public. 18.16. Environmental Attributes. Grantor hereby reserves all Environmental Attributes associated with the Property. "Environmental Attributes" shall mean any and all tax or other credits, benefits, renewable energy certificates, emissions reductions, offsets, and allowances (including but not limited to water, riparian, greenhouse 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 18.16 shall modify the restrictions imposed by this Deed or otherwise impair the preservation and protection of the Conservation Values. 18.17. Annual Appropriation. To the extent that any financial obligation of this Deed is subject to the multiple fiscal year obligations as set forth in of 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 18 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 18.17 shall prevent Grantee from enforcing the Deed in accordance with its terms, despite a failure by Grantor to appropriate funds. 18.18. Mediation of Disputes Regarding Proposed Activities. If Grantee denies a request by Grantor for approval pursuant to Section 7 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. 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. 19 TO HAVE AND TO HOLD unto Grantee, its successors, and assigns forever. IN WITNESS WHEREOF Grantor and Grantee have set their hands on the day and year first above written. GRANTOR: COUNTY OF EAGLE, COLORADO, by and through its Board of County Commissioners By Peter F. Runyon, Chairman STATE OF COLORADO ss. COUNTY OF EAGLE The foregoing instrument was acknowledged before me this day of , 2012, by Peter F. Runyon as Chairman of the Board of County Commissioners for Eagle County, Colorado. Witness my hand and official seal. My commission expires: Notary Public 20 GRANTEE: EAGLE VALLEY LAND TRUST, a Colorado non - profit corporation By Kara Heide, Executive Director STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this day of , 2012, by Kara Heide as Executive Director of Eagle Valley Land Trust, a Colorado non -profit corporation. Witness my hand and official seal. My commission expires: Notary Public 21 Exhibit A Legal Description of Property • Engineering Department Eagle County Phone: (970) 328 -3560 P.O. Box 850 FAX: (970) 328 -8789 500 Broadway www.eaglecounty.us Eagle, CO 81631 EAGLE COUNTY BERRY CREEKIMILLER RANCH "TRACT J OPEN SPACE" EXHIBIT "A" December 28, 2011 A description of a parcel of land for open space: For Eagle County. LEGAL DESCRIPTION That part of TRACT J, BERRY CREEK / MILLER RANCH PLANNED UNIT DEVELOPMENT, a subdivision located in Sections 3, 4, and 5, T5S, R82W of the 6th P.M., recorded June 25, 2002, as Reception No. 799649 of the records of Eagle County, State of Colorado, according to the recorded plat thereof, lying Easterly of the following described line: COMMENCING at the South Quarter Comer of said Section 4 which the Southeasterly comer of said Section 4 bears South 89 degrees 01 minutes 27 seconds East, 2698.18 feet (Basis of Bearing), thence North 77 degrees 30 minutes 04 seconds East, 2135.51 feet to the Southerly right -of -way line of the Denver Rio Grand Western Railroad; thence North 87 degrees 14 minutes 24 seconds East, 138.75 feet along the Southerly right of way line of said railroad to the Northeasterly corner of an amendment of easements, reservations, restrictions, covenants and rights of way record for TRACTS I AND J, BERRY CREEK / MILLER RANCH recorded March 20, 2003, as Reception No. 827411 to the POINT OF BEGINING of the line to be herein described; Thence South 46 degrees 26 minutes 13 seconds East, 99.78 feet along the Easterly Line of said document recorded as Reception No. 827411 to an angle point; Thence continuing along said Easterly Line South 23 degrees 10 minutes 00 seconds East, 108.48 feet to the Southerly property Line of said TRACT J and said described line there terminating. Area = 32.533 acres, more or less. (SEE EXHIBIT "B ") Exhibit B Map of Property A Pi D rn Il k ! 0 X I 1 j�1 1alb 1 & 4 70 1 0 .1; 1 I x ---1 1 > A P i ,416,1 D t rn . ( 1 -< � --I 1 m ■ \ o z t l k 1 0 ;v ;2 1 W 1 J \ 1 ! \' {p 0 ' p i I 2'59•w \` �\ ciA .Pi 65'6 \:-..„\...,\, \ 8 NO a A t \ �` 2 g ^ . .. - - O 4U ' p l - ..,..„,.\\.\\,„ g b,.- Al s 9,0 b o. PI rn M• . e .sue 7 - � • z � m ',o a ,$);.- p� 0 1 , 0 � . , \ .\ . f^ 9' \ ' ; E o w o , En g t p. a � c>v,,s _. . \\k..., \ A ! 0 6, `s 0" W fZ R \ \� `` d N Mom F.V. �.\ -- \ \\ 0 w w • \4\ \ a3zm \ ZAp ti i 22 Nom, \\m • �A� ' \\,.. i, a moo - o ig ,. Avt \ Ix ? -.F * \\I„.. 1 Q \ . \` yr _ ''V NO2.O3'42 ^E 37<"s. 7- 11 BERRY CREEK /MILLER RANCH TRACT) "o. DATE REVISION EAGLE COUNTY II I ENGINEERING DEPARTMENT 3 c, i OPEN SPACE - EXHIBIT "B" E °w . 870 32 - SECTION 4, T5S, R82W P.O. BOX 85D, 500 BROADWAY I EDWARDS, COLORADO EAGLE A5973 &3580 FAX 870 3288789 saves osa W weu " , Ai..$f LOU, Exhibit C Baseline Document Report Acknowledgement Grantor and Grantee acknowledge that each has read the "Conservation Easement Baseline Documentation Report," dated June 17, 2011, prepared by Rare Earth Science, LLC and that the report accurately reflects the condition of the Property subject to the Easement as of the date of conveyance of the Easement. EAGLE VALLEY LAND TRUST, a Colorado non -profit corporation By: Kara Heide, Executive Director Date: EAGLE COUNTY, COLORADO By and through its Board of County Commissioners By: Peter F. Runyon, Chairman Date: Exhibit D Notice of Transfer of Property To: Eagle Valley Land Trust ( "Grantee ") From: [Insert name of fee owner] ( "Grantor ") Pursuant to Section 15 of the Deed of Conservation Easement, 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]. GRANTOR: By: Title: STATE OF COLORADO ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 200_, by as of Witness my hand and official seal. My commission expires: Notary Public 6iiltieki+ t • ) . s ,�� - .05,40 1 I I J si r- I. V3 r `Y r I j nit 4. tea: i ..• �' m n. ` Miller Ranch Open Space Land Management Plan Eagle County Open Space /Eagle Valley Land Trust January 2012 PURPOSE: Eagle County acquired 32 acres of land known as the Miller Ranch Open Space (the "Property ") to protect the conservation values of the land and to provide public recreational access to the Property. The conservation values of the Property are more fully defined in the conservation easement and baseline report and include open space, outdoor recreation, education opportunities for the public and relatively natural habitat. In an effort to ensure that the land will be protected in perpetuity, a conservation easement was granted to the Eagle Valley Land Trust ( "EVLT "). This effort ensures permanent protection of the conservation values of the property. This Land Management Plan ( "Plan ") provides for the present and future management of the Property. MANAGEMENT MISSION STATEMENT: To provide a means for Eagle County manage the Property for the purpose of preserving and protecting the conservation values while providing compatible outdoor recreation opportunities, including trails for hiking, mountain biking, and horseback riding, all in accordance with the Conservation Easement and this Plan. BACKGROUND: The Property consists of approximately 32 acres located in the Edwards community. The land was acquired by Eagle County for the purpose of providing passive recreational opportunities to the public and simultaneously protecting important conservation values. Acquisition of the Property was completed through a development agreement. USE AND MANAGEMENT: TRAILS: Recreational trails are a public benefit of the Miller Ranch Open Space. The Property will be a major "destination open space" for County residents, but Edwards residents will constitute the majority of users. These users will include but will not be limited to hikers, runners, dog - walkers, equestrians, and mountain bikers. Currently there is a network of trails (see Figure A) that is generally considered sustainable and no realignments are proposed in the immediate future. Eagle Valley Land Trust will be consulted before any trail alignments are changed. Trail conditions will be monitored by Eagle County staff or third parties under a separate agreement at least twice per year to evaluate their condition and determine if changes or improvements are needed. In most cases, trail width should not exceed 36 inches and should remain natural with no additional surfacing materials. Exceptions that may require greater width include areas where increased trail width significantly enhances user safety and minimizes potential user conflicts, or very heavy trail use necessitates wider trails. Heavy use near the trailhead often necessitates a larger trail width perhaps up to 60 inches, but this would likely only be necessary for the first 100 feet. Trail material, such as crusher - fines, may also be useful in stabilizing the first 100 yards of trail where impacts are usually greatest. Trail improvement and maintenance work will generally rely on use of hand tools and perhaps small machines, such as a Bobcat. Heavy equipment should be avoided for trail maintenance due to the inherent impacts to the habitat and vegetation. Where heavy equipment proves necessary for trail maintenance, reconstruction or construction the County shall ensure that any damage or disturbance created by such construction shall be restored as near as is practical to the original condition. No motorized use on the trails will be allowed unless it specifically involves Eagle County staff or contractors conducting approved management of the property, such as fence repair, weed control, or trail maintenance. In addition, as set forth in the conservation easement some third parties may have the right to access the Property under existing easements or applicable law. TRAILHEAD AREA: The trailhead area is a small parking area north of the railroad tracks. It only accommodates a couple of cars. Most users of Miller Ranch walk or ride to the property from their houses. TRASH CANS: A wildlife -proof trash container may be installed on the Property, most likely near the entrance of the property. This receptacle will be emptied by Eagle County staff or a managing entity that has agreed to complete such work through a separate agreement. Additional wildlife -proof receptacles may be added as necessary based upon use and needs identified on the Property. DOG BAG DISPENSER: Eagle County anticipates that many users will visit the Property with dogs. To encourage these users to pick up after their dogs, a dog -bag dispenser will be located near the trailhead area. This dispenser will be serviced and replenished by Eagle County staff or a managing entity that has agreed to complete such through separate agreement. PICNIC TABLES AND BENCHES: Eagle County may place picnic tables on the Property, primarily in locations that may serve as destinations. They will be situated in a manner that does not negatively impact the scenic qualities of the Property. ROAD CONSTRUCTION AND PAVING: No road improvements are necessary and no vehicular use is anticipated except for County staff and those with third party easements • STRUCTURES: No standing structures currently exist on the Property and Eagle County has no immediate plans to construct any. FENCES AND DITCHES: The existing fences are not perfectly located to effectively mark boundaries. However, they serve to concentrate recreational access points. If deemed by Eagle County staff as unnecessary, fences will be removed. All fences on the Property will be monitored annually to determine if they are meeting a management objective, raising safety concerns, or posing an unnecessary threat to wildlife. Ditches exist on the Property. Eagle County has the right to fence off ditches for public safety reasons. Due to these concerns, Eagle County and the ditch owners have the right to construct fences or other exclusionary devices to exclude the public, which may not meet wildlife - friendly standards. Advance - notice and review of design shall be provided for these exclusionary fences so that comments can be made as to the impact these fences might have on the conservation values of the property. ACCESS: Eagle County expects that most users will access the parcel directly from their adjacent neighborhood. RESTROOM FACILITIES: No restrooms are planned. UTILITY IMPROVEMENTS: There are a number of Third Party Easements (as the term is defined in the conservation easement) affecting the Property. The terms of those Third Party Easements shall control. No new utility improvements are contemplated at this time. AGRICULTURE: Historically the property was used for grazing and haying. Eagle County has no plans to implement this use. NOXIOUS WEEDS: The Property is in good condition overall. However, minor infestations of Canada thistle and other weeds are scattered around the property. Eagle County staff trained in the use of chemical herbicides or a licensed commercial applicator will complete the spraying. Eagle County Staff will monitor the Property to ensure that weed control efforts are successful and that new populations do not become established. Specific focus will be given to detecting Colorado "A list" noxious weed species. "A List" species are plants that are newly introduced to Colorado and represent a serious threat to ecological integrity and native biodiversity. For these plants the management goal is total eradication. Under Colorado Law, "B" list species, including the aforementioned thistles, must be controlled. WILDLIFE MANAGEMENT: Wildlife habitat protection is a primary goal. The County may close the Property periodically to protect wildlife present on the Property. Eagle County staff or third parties under a separate agreement will periodically monitor wildlife use to determine if changes are occurring, and to what extent management practices are influencing such changes. Generally wildlife become somewhat accustomed to human use especially if it remains on consistently used paths. Eagle County anticipates that much wildlife use of the Property will occur at dawn, dusk and at night. If necessary, the Colorado Division of Wildlife will be consulted to assist in developing management strategies that minimize impacts to wildlife. SIGNAGE: Signage will include regulatory, educational, and directional signs, mainly in the trailhead area. Eagle County's intent is to create and install signs that are tasteful, unobtrusive to the natural landscape, and consistent with size limitations stipulated in the conservation easement. Small signage not to exceed 20 square feet is permitted to display and state the name of the Property, the funders, EVLT, etc. and that the area is protected by a conservation easement, the prohibition of any unauthorized entry or use, wildlife and ecological characteristics related to educational opportunities, and directional signs. Regulatory signs will essentially focus on rules for using the Property. Educational signs may be concentrated at the trailhead, with perhaps additional signs placed along the trail at unique vantage points. FOREST MANAGEMENT: The property is partially forested, mainly with riparian trees and shrubs. Eagle County does not anticipate major forest management issues. Dead trees may be left standing to provide habitat for birds, insects and rodents. However, they may be removed if they pose a public safety risk. Educational activities on the Property are encouraged. RULES AND REGULATIONS: Eagle County and the Eagle Valley Land Trust will establish rules and regulations. Upon completion of the rules and regulations to be adopted, Eagle County will share the final draft document that is anticipated to be approved by the County Commissioners with EVLT. Eagle County shall have the sole authority to make the final determination of rules to be adopted. Once adopted by the Board of County Commissioners, the rules and regulations will apply to the Property. During the interim, the following rules apply: No fires or fireworks No hunting on the Property No discharge of weapons No motorized recreation Users must stay on designated trails No littering No picking of plants or collection of artifacts No commercial activity No removal or collection of plants, animals, fungi or rocks No hang - gliding No loud music ALLOWABLE USES: Eagle County intends to permit the following uses on the Property: Hiking Mountain biking Equestrian Jogging /running Dog walking Picnicking Photography Wildlife viewing /bird watching Snowshoeing Cross - country skiing Orienteering Frisbee Kite - flying Other uses not inconsistent with the conservation values or Eagle County Rules and Regulations SPECIAL USES: The County anticipates that certain special uses will be requested by the public, which are possibly too numerous and wide - ranging to list in this Plan. Each request will be evaluated by County staff and the EVLT, whose approval is required and shall not be unreasonably withheld, to determine if it will have detrimental impacts to the conservation values of the Property. Specific considerations will include: Duration of the event Specific location within the Property Potential impacts to vegetation and wildlife Potential impacts to adjacent landowners Consistency with vision of open space purpose to provide passive recreational access The extent to which the proposed use interferes with, compromises or diminishes the ability for others to use and enjoy the Property Will the use result in increased management cost for Eagle County HOURS OPEN: Public access to the Property shall be permitted during the period that is one hour before sunrise to one hour after sunseteach day. All portions of the Property may be closed seasonally or as determined by Eagle County for maintenance or to address wildlife or other matters affecting the Property. In the event of such closure, the signs shall be posted on the Property and notice shall be given to the EVLT. CONSERVATION EASEMENT MONITORING: EVLT will hold a conservation easement on the Property. This will necessitate annual monitoring. EVLT staff shall notify Eagle County staff in advance of any annual monitoring effort so that Eagle Count staff may accompany EVLT staff during the monitoring. Eagle County and EVLT will maintain a file of annual easement monitoring reports and work cooperatively to address any concerns associated with use and management of the Property. APPROVED AND ADOPTED THIS day of , 2012. Eagle County, Colorado Eagle Valley Land Trust By: By: • - V . % ! ti t, t.- } i J» a i Y II r ., . 1 0 O T 0 / M C i 5 O i $ ` 7i 0 � ! ! ci m I- I N ' 0 > ca sly C., Q a c gt#i O •� �C; till 4 _C L U f- d aJ O °• LL o X W , , t . .... @ r 1 f) ■ a 1ikir 1 c BASELINE DOCUMENTATION REPORT n ;. k• t \ � r " a` , '15j� , y + „ w y + 4 •`R, l f lit. t H r M t fir ! '^'' _ t.) ,i , f F y . ._ ..„.„. . 0,47 Atli PPP "- r S q� . ,,...„ 4 ,,, . . . .. ,.. ., •. . .. , . . - , Berry Creek - Miller Ranch Open Space Conservation Easement Eagle County, Colorado Prepared For Eagle Valley Land Trust PO Box 3016 Edwards, Colorado 81632 Prepared By Rare Earth Science, LLC PO Box 1245 Paonia, Colorado 81428 (970) 527 -8445 June 17, 2011 • Baseline Documentation Report Berry Creek - Miller Ranch Open Space TABLE OF CONTENTS ATTESTATION PREPARER CERTIFICATION STATEMENT CONTACTS & BASIC INFORMATION SUMMARY iv 1 INTRODUCTION 1 1.1 Methods 1 1.2 Property & Setting Description 2 1.3 Directions to the Property 3 1.4 Summary of the Property's Conservation Values 3 2 PHYSICAL CHARACTERISTICS OF THE PROPERTY 4 2.1 Existing Improvements 4 2.2 Geology & Soils 5 2.3 Hydrology 5 2.4 Vegetation 6 3 LAND MANAGEMENT PRACTICES 7 3.1 Cultivation & Grazing 7 3.2 Public Access & Public Trails 8 3.3 Weeds & Weed Control 8 3.4 Minerals 8 4 OPEN SPACE 8 4.1 Scenic Characteristics 8 4.2 Significant Public Benefit 9 5 RECREATION 11 6 RELATIVELY NATURAL HABITAT 11 6.1 Habitat for Threatened, Endangered, or Special Concern Species 11 6.2 Big Game Habitat 12 6.3 Habitat for Other Wildlife 13 7 REFERENCES 13 FIGURES (Following Main Text) 1. Regional & Local Locator Maps 2. Topographic Map 3. Aerial Photograph & Photopoint Locations 4. Improvements & Vegetation Communities 5. Soils Map 6. Wildlife Range Maps DOCUMENTARY PHOTOGRAPHS (Following Figures) June 17, 2011 i Rare Earth Science, LLC Baseline Documentation Report Berry Creek — Miller Ranch Open Space ATTESTATION BERRY CREEK - MILLER RANCH OPEN SPACE CONSERVATION EASEMENT EAGLE COUNTY, COLORADO In compliance with Title 26 of the Internal Revenue Code [ §1.170A- 14(g)(5)], and to the best of my knowledge, this Baseline Documentation Report, including text, maps, and photographs, is an accurate representation of the Berry Creek - Miller Ranch Open Space conservation easement property on , 20, the time of the conveyance of the • conservation easement. The conservation values include open space, outdoor recreation for the public, and relatively natural habitat. Eagle County, GRANTOR Date , County Commissioner Eagle Valley Land Trust, GRANTEE Date Kara Heide, Executive Director June 17, 2011 ii Rare Earth Science, LLC Baseline Documentation Report Berry Creek — Miller Ranch Open Space PREPARER CERTIFICATION STATEMENT BERRY CREEK — MILLER RANCH OPEN SPACE CONSERVATION EASEMENT EAGLE COUNTY, COLORADO I, the undersigned, prepared this Baseline Documentation Report in accordance with Treas. Reg. 1. 170A- 14(g)(5)(i)(D). To the best of my knowledge, this Baseline Documentation Report, including text, maps, and photographs, is a true and correct representation of the Berry Creek — Miller Ranch Open Space conservation easement property at the date of my signature below. I certify that I am a qualified provider of conservation easement due diligence. As principal biologist at Rare Earth Science, I have personally prepared baseline documentation reports for more than 150 conservation easement projects in eight Colorado counties, and am familiar with the natural resources of the region. My recent relevant project experience includes rare plant surveys in Delta and Montrose counties, co- authorship of Colorado Sagebrush: A Conservation Assessment and Strategy (prepared for the Colorado Division of Wildlife in 2005), and a Migratory Bird Status Literature Review (prepared for the Uncompahgre Field Office of the U.S. Bureau of Land Management in 2009). I earned a Bachelor of Science degree in Biological Sciences from Stanford University in 1988 and have 21 years of experience in consulting practice. , 44S�� June 17, 2011 Dawn R. Reeder, .'rincipal Biolo• .t Date Rare Earth Science, LLC June 17, 2011 iii Rare Earth Science, LLC Baseline Documentation Report Berry Creek — Miller Ranch Open Space CONTACTS & BASIC INFORMATION SUMMARY GRANTOR Eagle County 500 Broadway Eagle, Colorado 81631 GRANTEE Eagle Valley Land Trust PO Box 3016 Edwards, Colorado 81632 (970) 748 -7654 BASELINE DOCUMENTATION REPORT PREPARER Dawn Reeder Rare Earth Science, LLC PO Box 1245 Paonia, Colorado 81428 (970) 527-8445 dawn @rareearthscience.com CONSERVATION EASEMENT NAME: Berry Creek — Miller Ranch Open Space ACREAGE: Approximately 32.5 acres PROPERTY ADDRESS: Rural, Miller Ranch Road, Edwards, Colorado EAGLE COUNTY PARCEL NO. Portion of Parcel No. 2105 - 033 -17 -002 PHYSICAL LOCATION Please refer to the map and legal description in the Deed of Conservation Easement. LEGAL DESCRIPTION See the Deed of Conservation Easement, Exhibit A, for a complete legal description. BUILDING ENVELOPE No building envelopes are permitted on the conservation easement under the Deed of Conservation Easement. June 17, 2011 iv Rare Earth Science, LLC Baseline Documentation Report Berry Creek — Miller Ranch Open Space 1 INTRODUCTION Colorado Revised Statutes (CRS) provide for the establishment of conservation easements to maintain land "in a natural, scenic, or open condition, or for wildlife habitat, or for agricultural [...] or other use or condition consistent with the protection of open land having wholesome environmental quality or life- sustaining ecological diversity" [CRS §38- 30.5 -101]. Toward these ends, the Eagle County Board of Commissioners, on behalf of the citizens of Eagle County ( "grantor" or "the county ") is conveying a perpetual conservation easement on property in Eagle County, Colorado, to Eagle Valley Land Trust ( "Land Trust" or "grantee "). The grantee is a non - profit corporation and a "qualified organization," as defined in §170(h) of the Internal Revenue Code, and a charitable organization as required under CRS § §38- 30.5- 104(2). The conservation easement will be known as the Berry Creek - Miller Ranch Open Space, and will preserve scenic open space and wildlife habitat while providing outdoor recreational opportunities to the citizens of Eagle County and the State of Colorado. It is the policy of the grantee to require baseline documentation for all conservation easement conveyances it accepts. This report contains a natural resources inventory and also documents the conservation values and the characteristics, current use, and status of improvements on the property. The accuracy of this report is acknowledged by the grantor and grantee at the time of the conservation easement conveyance. This report is intended to benefit to both parties and will be used by grantee to assure that any future changes on the property are be consistent with the terms of the Deed of Conservation Easement (CE Deed). However, this report is not intended to preclude the use of other evidence to establish the condition of the property at the time of the conservation easement conveyance. This report, together with other materials in the grantee's files, addresses all applicable items in the grantee's Baseline Documentation Report Checklist. Figure 1 shows the property's regional setting and location in relationship to other conserved private property and public lands, as well as directions to the property. Figure 2 shows the topography of the property and its surroundings. Figure 3 provides an aerial overview of the property and a key to documentary photograph locations. Figure 4 depicts the improvements and vegetation communities on the property. Figure 5 maps the soil units on the property. Ranges of selected wildlife species are mapped on Figure 6. A list of global positioning system (GPS) coordinates for the locations of documentary photographs is included on Figure 3. 1.1 Methods This report satisfies the documentation requirements of the U.S. Internal Revenue Service Code at §1.170A -14 and the conservation easement due diligence requirements of the grantee, and generally follows standards and practices recommended by the Land Trust Alliance (Hamilton 2008). Methods of baseline documentation included a field visit to the property and an interview with the grantee on June 1, 2011, review of information provided by the grantee and grantor, and research of available publications and other relevant documents, as cited. Mapping for this document was created using ESRI® geographic information systems (GIS) software, ArcGIS 9.3TM and a recreational -grade handheld GPS unit. Base maps consist of U.S. June 17, 2011 1 Rare Earth Science, LLC Baseline Documentation Report Berry Creek — Miller Ranch Open Space Geological Survey (USGS) 7.5- minute topographic quadrangle and National Agricultural Imagery Program (NAIP) aerial photography digital mosaics available for public download through the U.S. Department of Agriculture Natural Resources Conservation Service (NRCS). Data resources used to create regional mapping (Figure 1), soils mapping (Figure 5), and wildlife range maps (Figure 6) are cited on the figures themselves. The photopoint map (Figure 3) was created by mapping GPS waypoints marked at documentary photograph locations. The improvements map (Figure 4) was created by interpreting recent aerial photographs and by mapping GPS waypoints of certain point features and tracks of roads, trails, and fence lines on the property. Consequently, the improvements map must not be considered a survey of improvements, but rather a simple inventory sketch. The vegetation community was mapped (Figure 4) by interpreting recent aerial photographs, combined with a walkabout survey of the property. It should be noted that vegetation mapping boundaries cannot accurately represent the intergrade between plant communities. It was not within the scope of this report to review boundary adjustments, miscellaneous easements, or rights -of -way, whether recorded or unrecorded, for accuracy or applicability to the conservation easement conveyance. 1.2 Property & Setting Description The Berry Creek - Miller Ranch Open Space Conservation Easement property (hereinafter, "property") is approximately 32.5 acres lying south of the Interstate -70 corridor and north of U.S. Highway 6, just east of the community of Edwards, in Eagle County, Colorado (Figure 1). A complete legal description of the property is provided in Exhibit A of the Deed of Conservation Easement (CE Deed). See the Contacts and Basic Information Summary in the front matter of this report for further information identifying the physical location of the property. The property features riparian woodlands, meadows, shrublands, and wetlands, and an approximately 4,900 -foot reach of Eagle River. Improvements at the time of the conservation easement conveyance were an unimproved service road, unimproved trails, minor utilities, irrigation infrastructure, and perimeter fencing. No buildings existed on the property, and no residential dwellings will be permitted on the property by the CE Deed. Documentary photographs showing the property's improvements and important features follow the figures after the text of this report. The locations of the photographs are keyed to Figure 3, and improvements are mapped on Figure 4. The Eagle River drainage is situated in the Southern Rocky Mountains physiographic province in the foothills of the Sawatch Mountains in the greater Colorado River watershed. The area is characterized by steep river valleys and terraces flanked by high foothills and mountains. Typical of Colorado's western slope, winters are relatively cold and snowy and summers are relatively warm and dry. The property lies at approximately 7,300 feet above mean sea level (Figure 2). The property is bounded by a rail road easement and other Eagle County lands to the north, Miller Ranch Road and private lands to the west, Eagle River and a residential subdivision and golf course to the south, and the residential subdivision and golf course to the east. Prior to its ownership by Eagle County, historic uses of the property have included livestock range and recreational hunting. The property is currently managed by Eagle County as public open space. Trails on the property are used by local residents and visitors for passive recreation activities. The public can also gain fishing and boating access to the river from the property's trails (foot trails only —no vehicular access or boat ramps will be provided or permitted for the public). June 17, 2011 2 Rare Earth Science, LLC Baseline Documentation Report Berry Creek — Miller Ranch Open Space 1.3 Directions to the Property From the Edwards exit on Interstate -70, head south on Edwards Access Road for 0.1 mile. Turn left (east) through a roundabout onto Miller Ranch Road and drive approximately 1.1 miles to the northwest property corner, which is on the left just before Miller Ranch Road crosses Eagle River (see Figure 4 for entrance location). 1.4 Summary of the Property's Conservation Values The purpose of the conservation easement conveyance on the property is to preserve, in perpetuity, the following conservation values: 1. Open space. The property's forested riparian corridor and open shrublands and meadows add to the scenic character, openness, and variety of the local rural landscape. A large portion of the property, including the lush riparian corridor of Eagle River, is visible from Interstate -70, from U.S. Highway 6, from Miller Ranch Road, and from other public roads around Eagle Valley. From these roads, which are utilized year - round by citizens of Eagle County and the State of Colorado, travelers also enjoy unobstructed scenic views across the property toward the foothills of the Gore and Sawatch Mountain Ranges on the White River National Forest. Development of the property into residential parcels would likely lead to or would contribute to the degradation of the scenic character of the area. Preservation of open space, including scenic lands, is supported by state and local governmental policies, and brings significant benefit to the public. 2. Recreation. The conservation easement will allow public to access the property from a trail originating on Miller Ranch Road. As such, the general public may enjoy non - motorized recreational opportunities on the property, including walking, jogging, skiing, bicycling, fishing, wildlife watching, rafting, and kayaking. The property currently receives substantial and regular use by the general public for the purpose of outdoor recreation. No vehicular access or boat ramps will be provided or permitted for the public. 3. Relatively natural habitat. The property supports a forested riparian corridor along a 4,900 -foot reach of Eagle River and a 500 -foot reach of June Creek, montane meadows and shrublands, and graminoid wetlands in relatively natural condition that provide forage, cover, breeding habitat, and migration corridors for several wildlife species, including migratory songbirds, beaver, and big game. The property supports wintering elk and provides summer range for mule deer; these wild ungulates contribute significantly to the biodiversity and the region and to the economy through hunting revenues. The habitat on the property is "significant" as defined by the Treasury Regulations, as it represents potential habitat for rare, endangered, or threatened species such as northern river otter (recognized as threatened and protected under the Colorado Nongame, Threatened, or Endangered Species Conservation Act); bald eagle (a Colorado State Species of Concern); and northern leopard frog (a Colorado State Species of Concern). June 17, 2011 3 Rare Earth Science, LLC Baseline Documentation Report Berry Creek — Miller Ranch Open Space 2 PHYSICAL CHARACTERISTICS OF THE PROPERTY 2.1 Existing Improvements The appearances of improvements are shown in the documentary photographs (following the figures after the main text), whose locations are keyed to Figure 3. Figure 4 maps the locations of improvements and other important features. GPS coordinates for photopoint locations are provided on Figure 3. The remaining bulleted paragraphs of this section describe other improvements on the property, such as fencing, roads and trails, utilities, and irrigation infrastructure. • Buildings. No buildings existed on the property at the time of the field visit. • Roads and trails. Primary access to the property is via an unimproved two -track road (service vehicle access) off of Miller Ranch Road into the northwest property corner (Photopoints 1, 4, 7, 16, 21, and 22). A single -track trail departs from this two -track road and loops through the forested riparian area west of June Creek (Photopoints 10, 13, and 14). Several short spur trails lead from these main trails south to the river bank (Photopoint 11, for example). The origins of spur trails observed during the baseline field visit are marked on Figure 4. An additional faint spur trail leads to the wetland area in the west- central part of the property (Photopoint 10, looking west -by- southwest). • Fences. The property is fenced along the north boundary with multi- strand barbed wire livestock fencing (Photopoints 1, 7, 15, and 22). The east boundary is gated at the two - track road with wire panel fencing (Photopoint 22) extending north and south on either side of the gate to discourage trespassing into private property to the east. However, a social trail cuts around this fencing to the north. • Utilities. No utilities were observed on the property at the time of the baseline field visit; however, the grantor's review of a title insurance commitment procured during the conservation easement conveyance process noted multiple utility easements exist on the property. A water well casing, storm drain -type structure (Photopoint 3), and small pump house are located near (just outside of or on) the property's west boundary. A linear area of disturbed ground oriented roughly north -south was observed east of June Creek and south of the main trail (Photopoint 17, looking northeast). It is unknown whether this area contains a buried utility line. • Irrigation infrastructure. Beginning at the northeast property corner, Howard Ditch, an irrigation canal running in a combination of open ditch and buried pipe, flows west within or near the property's north boundary a distance of approximately 1,900 feet before exiting the property's north boundary. Howard Ditch crosses June Creek in a suspended pipe (Photopoint 16, looking north -by- northeast). Ditch cleaning and maintenance was underway at the time of the field visit (Photopoint 15). • Bank stabilization. Deposits of scrap metal and other debris (such as discarded culvert or irrigation pipe and flume material) were present in the east part of the property along the north river bank (see Figure 4 for approximate location and Photopoint 21). Presumably, these items were deposited at one time to provide bank stabilization and erosion control. June 17, 2011 4 Rare Earth Science, LLC Baseline Documentation Report Berry Creek - Miller Ranch Open Space 2.2 Geology & Soils The property lies in the rugged, high - elevation terrain of the Southern Rocky Mountains physiographic province, which is characterized by cliffs, canyons and gulches cut in gently - dipping to broadly - folded sedimentary rocks of Pennsylvanian to Cretaceous age. The topography and geology of this area was influenced by several major structural elements in western Colorado, including the Gore Range to the east - northeast, the White River Uplift and Flat Top Mountains to the west - northwest, and the Sawatch Range to the south. This area is located within the Eagle Basin, which is primarily a Pennsylvanian -aged depositional trough located in a structurally complex area east of the Piceance Basin. This area is also located in the Upper Colorado River drainage basin. The Geologic Map of the Leadville 1° x 2° Quadrangle, Northwestern Colorado (USGS Miscellaneous Investigation Series Map 1 -999, 1988) was reviewed for an understanding of local surface and subsurface geologic conditions. The property is comprised of bedrock Middle Pennsylvanian Eagle Valley Evaporite (Map Unit Pee). Map Unit Pee consists of gypsum, anhydrite, and interbedded siltstone and minor dolomite, with thick halite salt at depth in some places, and a thickness of upwards of 9,000 feet in the property vicinity. Unconsolidated Pleistocene young gravel deposits (Map Unit Qg) cover the entire surface of the Site, and overlie bedrock Map Unit Pee. Map Unit Qg includes stream, terrace and outwash gravels, largely of glaciofluvial and alluvial origin, deposited less than 1 million years ago. Map Unit Qg fills and forms the major low -lying areas and well - developed drainages in the Eagle River Valley. The local soil survey identifies several soil units on the property (Figure 5). 2.3 Hydrology The property encompasses approximately 4,900 feet of Eagle River frontage, including an old meander area containing a small beaver pond complex. The Eagle River is a major local tributary of the Colorado River, and its riparian corridor is significant landscape feature of Eagle County through the 1 -70 corridor (Photopoints 23 and 24). Peak runoff flows near Avon, Colorado, range between about 2,000 and 5,500 cubic feet per second (cfs), and mean annual high water runoff is approximately 4,100 cfs (USGS 2011). Following spring runoff, and during the peak of the growing season when the demand for irrigation water is high, in- stream flows in in Eagle River are somewhat diminished. Eagle River supports natural riparian woodlands and shrublands along its entire north bank frontage on the property. Natural riparian communities depend on periodic / seasonal flooding to regenerate. The Eagle River's flow regime, morphology, and the health of its riparian communities have been significantly affected over the years by irrigation diversions, floodplain aggregate mining, historic efforts to control flooding and bank erosion, and bottomland conversion to croplands. Most of these activities have occurred primarily downstream of the property. However, during recent years residential and resort -type developments have encroached into the riparian corridor of the river in the Edwards area and upstream of the Edwards area. A residential subdivision and golf course lie directly across (south of) Eagle River from the property (Photopoint 4). The structures and landscaping of this development have a relatively small setback from the south river bank. Consequently, the riparian character of the south bank of Eagle River across from the property is no longer in a natural condition, underscoring the importance of the conservation easement in preserving the natural forested riparian corridor, and an undeveloped buffer for that corridor, on the property. This provides ecological as well as recreational and scenic open space benefits to the citizens of Eagle County and the State of Colorado. June 17, 2011 5 Rare Earth Science, LLC Base line Documentation Report Berry Creek - Miller Ranch Open Space Other surface hydrology features on the property include a short reach of June Creek (Photopoint 17, looking north -by- northeast), open and piped sections of Howard Ditch, and a graminoid wetland (Photopoints 8 and 9). June Creek flows from the north into Eagle River in the east part of the property (Photopoint 18). Howard Ditch traverses the property's north boundary, flowing from east to west during irrigation season to irrigate hay fields in the valley downstream of the property. The graminoid wetland lies in the west part of the property on a terrace above the river. Its hydrology appears to be provided by a spring or seep issuing from a hillsiope to the north. Preservation of the property's natural riparian corridor under the conservation easement will help conserve some of arid western Colorado's most important wildlife habitat resources. Much of Colorado's pre - EuroAmerican settlement riparian habitat has been lost, degraded, or permanently altered in the past century due to water projects (dams, diversions, and introduction of competitive non - native plants such as tamarisk and Russian olive for erosion control). Also, an estimated 50 percent of Colorado's original wetlands have been lost due to residential and commercial development, livestock overgrazing, cropland conversions, water diversions, and contamination (Yuhas 1996). According to a recent landscape -scale mapping effort by the Southwest Regional Gap Analysis Project, riparian habitat constitutes less than 3 percent, and wetlands constitute less than 0.1 percent, of the total area of western Colorado. Nevertheless, about.72 percent of all reptile species, 77 percent of all amphibians, 80 percent of all mammals, and 90 percent of all bird species occurring in the region routinely use riparian areas for food, water, cover or migration routes (Knopf 1989). 2.4 Vegetation The vegetation communities found on the property are listed and briefly described in paragraphs below, and mapped on Figure 4. The vegetation map was created by interpreting a recent aerial photograph, combined with a walkabout survey of the property. • Riparian forested (approximately 10.6 acres). This community type occurred along the majority of the banks of Eagle River and June Creek on the property (Photopoints 2, 13, and 17) and was dominated by narrowleaf cottonwoods (Populus angustifolia), but also featured an occasional Colorado blue spruce (Picea pungens), Engelmann spruce (Picea engelmannii), or Rocky Mountain juniper (Juniperus scopulorum). A variety of riparian shrubs were scattered throughout, including chokecherry (Prunus americana), alder (Alnus incana tenuifolia), Redosier dogwood (Corpus sericea), coyote willow (Salix exigua), wild rose (Rosa woodsiv), three -leaf sumac (Rhus trilobata), currant (Ribes sp.), and hawthorn (Crataegus sp.). Several species of mesic shrubs were also observed in the riparian corridor, such as snowberry (Symphoricarpos rotundifolius), serviceberry (Amelanchier alnifolia), and twinflower (Linnaea borealis). Herbaceous plants in the understory appeared to consist mostly of pasture grasses, namely, smooth brome (Bromus imermis). However, cow parsnip (Heracleum sphondylium), false Solomon's seal (Maianthemum stellatum), wild phlox (Phlox spp.), and wiregrass (Juncus balticus) were among the native herbaceous plants scattered throughout the riparian corridor. Overall, the forested riparian community on the property was in good condition, with a good mix of cottonwood age classes and a high degree of recruitment of new cottonwood saplings (Photopoint 19) in and near the floodplain. Several standing cottonwood snags and older trees provide habitat opportunities for cavity nesting birds and rodents, and roosts for several raptor species and great blue herons. Part of the floodplain of Eagle River in the west part of the property features a small beaver pond June 17, 2011 6 Rare Earth Science, LLC Base line Documentation Report Berry Creek – Miller Ranch Open Space complex vegetated with vigorous cottonwood saplings and willows (Photopoints 5 and 6). • Riparian shrubland (approximately 1 acre). Riparian shrublands on the property were associated with the Howard Ditch alignment and were dominated by thick stands of coyote willow and /or three -leaf sumac. Ditch clearing activities (maintenance) were taking place on Howard Ditch during the baseline field visit, which has resulted in the removal of much of the riparian shrubland along its banks (Photopoint 15). However, this community is likely to regenerate relatively quickly during the next few growing seasons. • Montane meadow (approximately 4.5 acres). Montane meadows were present on the property on low benches above the riparian forested corridor, and were vegetated primarily with smooth brome, a pasture grass cultivated widely in the region (Photopoint 14). It is assumed that much of the property was livestock pasture or hayfields and these meadow areas are remnant pastures or hayfields. Cottonwood saplings or rabbitbrush (Chrysothamnus spp.) are gradually encroaching on these meadow areas with time. • Montane shrubland (approximately 7 acres). Montane shrublands were present across the north central part of the property and in an open area east of June Creek. The principal shrub is a species of rabbitbrush, and herbaceous ground cover is dominated by smooth brome. As with the montane meadow community type, the montane shrubland areas are reverting to a more natural state following a period of cultivation and /or grazing when the property was ranched. • Graminoid wetland (approximately 1.7 acres). The graminoid wetland (i.e., wetland dominated by grass -like plants) on the property featured a lush association two species of sedge —water sedge (Carex aquatilis) and an additional unidentified Carex species (sp.) (Photopoints 8, 9, and 12). Other wetland graminoids present at the dryer fringes of the Carex association were wiregrass and a small spike rush (Eleocharis sp.). The source of hydrology for this wetland appears to be subsurface flow from the north emerging near the toe of the slope of the bench where the main trail / service road is located. • Open water / river bed (approximately 7.7 acres). Nearly one - quarter of the property encompasses open water or, during low water periods, unvegetated river bed of Eagle River (Photopoints 1, 2, 4, 11, 13, 18, 20, and 21). The rejuvenation of the property's cottonwood stands depends on the natural flood regime of the river (i.e., high stage in spring) and in allowing for changes in geomorphology to occur to the river channel naturally over time to the greatest extent possible. Much of the south bank of Eagle River adjacent to the property is confined to its existing location due to the residential development there, whereas a large portion of the north bank through the property can undergo natural geomorphologic changes over time, as a benefit of the conservation easement. 3 LAND MANAGEMENT PRACTICES 3.1 Cultivation & Grazing The property was once part of Miller Ranch, and as such, was likely used to graze livestock. As a result, the montane meadow areas and the montane shrubland understory areas of the property are dominated by smooth brome and other cultivar pasture grasses. The property has not been grazed for a number of years. June 17, 2011 7 Rare Earth Science, LLC Baseline Documentation Report Berry Creek — Miller Ranch Open Space 3.2 Public Access & Public Trails The property is managed as public open space and wildlife habitat. Under the conservation easement, Eagle County will continue to manage the property as public open space and wildlife habitat and provide for the use of its trails. Foot path access to the riverbank for fishing and non - motorized boating access will be permitted. 3.3 Weeds & Weed Control The only Eagle County noxious weeds (Co. Dept. of Agriculture 2011) observed on the property at the time of the baseline field visit were Canada thistle (Cirsium arvense) and houndstongue (Cynoglossum officinale), scattered in the vicinity of trails and Howard Ditch. Canada thistle is considered a nuisance plant because it can form nearly impenetrable monocultural stands under certain conditions. Houndstongue is toxic to horses, cattle, and wild ungulates. Noxious weeds did not appear to be a serious management issue on the property at the time of the field visit. Weeds are actively managed on County properties by Eagle County, as funding and personnel are available. Other troublesome weeds on the property were cheatgrass (Bromus tectorum), common dandelion (Taraxacum officinale), and common mullein (Verbascum thapsus) and annual mustards. These plants appeared to be concentrated near trails and areas of recent minor ground disturbance. Such infestations are typical and widespread in these habitat types in Eagle County and are not considered to be directly harmful to wildlife or pets. 3.4 Minerals The grantor and grantee's review of a title insurance commitment procured during the conservation easement conveyance process identified that the mineral rights on the property are wholly owned by the grantor, subject to existing reservations of patents of record. No past or present mining activities were evident on the property at the time of the field visit. No mining will be permitted under the CE Deed, except as permitted in patents of record. 4 OPEN SPACE The property provides scenic views and open space for the benefit and enjoyment of the public (see Section 1.4 for a summary of the property's conservation values). The open space conservation value of the property is described in detail below and depicted in figures and documentary photographs following the main text of this report. Documentary photographs were taken at the photopoints shown on Figure 3. The GPS coordinates of the photopoints are included on Figure 3 of this report. 4.1 Scenic Characteristics The property possesses excellent scenic characteristics. The property's aesthetically - pleasing and harmonious array of shapes and textures created by its relatively natural forested riparian corridor and open meadows and shrublands, provides scenic enjoyment to the general public, and contributes to the openness and variety of the overall landscape in the region. A large portion of the property, including the lush riparian corridor of Eagle River, is visible from Interstate -70 (Photopoints 23 and 24), from U.S. Highway 6, from Miller Ranch Road June 17, 2011 8 Rare Earth Science, LLC Baseline Documentation Report Berry Creek — Miller Ranch Open Space (Photopoint 1), and from other public roads around Eagle Valley. From these roads, which are utilized year -round by citizens of Eagle County and the State of Colorado, travelers also enjoy unobstructed scenic views across the property toward the foothills of the Gore and Sawatch Mountain Ranges on the White River National Forest. 4.2 Significant Public Benefit Preservation of the property under a conservation easement will yield significant public benefit because its open space provides a) scenic enjoyment for the general public, b) wildlife habitat at the site - specific level and habitat connectivity at the landscape level (Figure 6). Preservation of the property will continue to provide an opportunity for the general public to appreciate its scenic values, and is important for preserving regional resources with the potential to provide revenue and attract tourism to the area. A significant benefit to the public is provided by the conservation easement on the property because of the strong likelihood that development of the property would lead to or would contribute to degradation of the relatively natural habitat and the scenic and rural character of the area. Open space (including relatively natural habitat supporting big game), and scenic views are important resources that benefit the public by bringing significant hunting and tourism revenues to the State of Colorado and Eagle County. A conservation easement on the property is supported by policy at the state and regional /local levels: • State policy. Colorado Revised Statutes (CRS) provide for the establishment of conservation easements to maintain land "in a natural, scenic, or open condition, or for wildlife habitat, or for agricultural [...] or other use or condition consistent with the protection of open land ..." [CRS §38- 30.5 -101]. The Colorado Wildlife and Parks and Outdoor Recreation statutes [CRS §33 -1 -101 and §§ 33 -10 -101], provide, respectively, 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 visitors to this state" and that "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." The Colorado Department of Transportation statutes [CRS §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. 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." • Regional & local policy. The property and its use are consistent with Eagle County's 2005 Comprehensive Plan, which became effective on January 18, 2006, 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. June 17, 2011 9 Rare Earth Science, LLC Baseline Documentation Report Berry Creek — Miller Ranch Open Space The establishment of a conservation easement on the property is consistent with the following goals of Eagle County's 2005 Comprehensive Plan: o Goal: The impacts of development in Eagle County are carefully monitored, and future development occurs in a manner that preserves a high quality of life, a diverse and sustainable economy, the area's scenic beauty, a healthy natural environment and a vibrant, well designed community (3.2). o Goal: Eagle County's infrastructure and community services support all present and future community needs and encourage efficient travel, healthy lifestyles, a stable economy and the preservation of environmental quality (3.5). o Goal: Preserve and /or enhance the quality of wildlife habitat, and the vitality of wildlife populations in Eagle County (3.7). o Goal: Development in Eagle County avoids or fully mitigates impacts to sensitive lands. Open space is preserved to the greatest degree possible, and scenic quality and cultural resources are protected (3.8). The establishment of a conservation easement on the property is consistent with the policies and strategies set forth in the Eagle County's 2005 Comprehensive Plan, including the following: o The integrity, quality and interconnected nature of critical wildlife habitat in Eagle County should be preserved (3.7.2.a). o The well -being of wildlife species of economic importance should be actively monitored and protected (3.7.2.b). o The well -being of wildlife species of less economic importance and those on the rare and endangered species list should be actively monitored and protected (3.7.2.c). o Development in areas critical to the continued well -being of Eagle County's wildlife populations should not be allowed (3.7.3.d). o Wildlife friendly measures should be incorporated into the design of individual home sites and neighborhoods (3.7.5.g). o Development and development patterns should preserve landscapes that include visual, historic, and archeological value (3.8.3.c). o A variety of approaches should be utilized to preserve land as open space, including conservation easements and the transfer of development rights. o Open space should be able to serve different needs in different applications; and promote the benefits of conservation easements to area ranchers (3.8.4). June 17, 2011 10 Rare Earth Science, LLC Baseline Documentation Report Berry Creek — Miller Ranch Open Space 5 RECREATION The trails on the property are popular walking paths used by residents of the area. The trails provide a passive recreation opportunity in a natural and scenic setting close to an area with relatively high housing density. Several people were walking the trails at the time of the baseline field visit (for example, Photopoint 10, looking east -by- northeast). Under the conservation easement, Eagle County will continue to manage the property as public open space and provide for the use of its trails. Foot path access to the riverbank for fishing and non - motorized boating access will be permitted. 6 RELATIVELY NATURAL HABITAT The property features relatively natural habitat conservation values (see Section 1.4 for a summary of the property's conservation values). The property's natural riparian corridor, wetlands, montane meadows, and shrublands provide important relatively natural habitat and habitat linkages for wildlife in the area. Surface water resources and vegetation communities on the property are described in Sections 2.4 and 2.5 of this report. The locations of surface water resources and vegetation communities are shown on Figure 6. The appearance of the property's relatively natural habitat is depicted in documentary photographs following the main text of this report. Documentary photographs were taken at the photopoints shown on Figure 3. The ranges of selected wildlife species are mapped, relative to the property, on Figure 6. The GPS coordinates of the photopoints are included on Figure 3. 6.1 Habitat for Threatened, Endangered, or Special Concern Species Threatened, endangered, or special concern species known to occur or with the potential to occur on the property based on documented ranges and habitat requirements are described below. It is important to note that it was not within the scope of this report to conduct a comprehensive survey for threatened, endangered, or special concern species during the baseline field visit. Threatened, endangered, or special concern animal species described below are either known by the grantee to occur on the property or are expected to occur based on documented nearby occurrences and presence of suitable habitat on the property. • Bald eagle. Although the bald eagle was removed from the federal threatened and endangered species list in June 2007, the federal government will continue to monitor its recovery under the U.S. Endangered Species Act at least through the year 2012.The bald eagle is listed as a State of Colorado Species of Concern (CDOW 2011). The grantor has observed bald eagles on and near the property, where they prey on fish, rodents and carrion. The property lies near bald eagle winter range and winter foraging range mapped by CDOW (Figure 6). The property features tall deciduous trees that provide good roosts for bald eagles and other raptors. • North American river otter, recognized as threatened and protected under the Colorado Nongame, Threatened, or Endangered Species Conservation Act, may find suitable habitat on the property. A pair of river otters requires approximately 1.5 to 8 miles of stream or shoreline depending on prey resources, and stream flow of at least 50 cfs (Boyle 2006). Other requirements are food resources (fish, small mammals), good water quality, riparian vegetation providing at least 50 percent cover along banks, and other cover in or along streams such as woody debris or boulders (Boyle 2006). Bank stability June 17, 2011 11 Rare Earth Science, LLC Baseline Documentation Report Berry Creek — Miller Ranch Open Space and maintenance of floodplain structure provide opportunities for denning. The property provides good hunting and denning habitat for river otter. The property lies within CDOW- mapped range of river otter (Figure 6). River otters have been observed in the vicinity of the property recently (Heide, pers. comm), and should find plentiful prey in the property's riparian corridor (i.e., fishes, beaver, and other small rodents). • Northern leopard frog. The property features excellent breeding habitat for the northern leopard frog in the Eagle River and June Creek corridors, beaver ponds, and wetlands. This widely distributed amphibian has become scarce in some areas of Colorado leading to its recognition as a Species of Concern by the State of Colorado (CDOW 2011). In low elevation areas in western Colorado, the leopard frog can be displaced by non- native bullfrogs or decimated by non - native predatory fishes (Hammerson 1999). In higher elevation areas, the decreases in abundance of these frogs are largely unexplained. Although no leopard frogs were observed on the property during the baseline field visit, many northern leopard frog occurrences have been documented in the vicinity of the property (CNHP 2010). 6.2 Big Game Habitat The property lies within the overall ranges of game species including mule deer, American elk, mountain lion, and black bear, all big game species that are of economic importance to Eagle County and the State of Colorado, and that contribute significantly to the biodiversity of the region. • American elk. The property lies within overall range of American elk and is mapped as elk winter range by CDOW (Figure 6). Elk find good security in the property's forested riparian corridor and good forage in its meadows and shrublands. Elk and other big game species contribute significantly to the biodiversity of the region and are of economic importance to Eagle County: approximately 45,000 elk were harvested by hunters in Colorado in 2008 (CDOW 2009), generating large revenues both directly and indirectly for the state (a total of 223,439 hunting licenses were issued). The quantity of elk winter range in the region is generally declining in part due to residential development at lower elevations in areas (especially agricultural valleys) that contain the most productive big game winter range. The conservation easement on the property will benefit big game by maintaining and buffering open space in and near their winter range. Maintaining the property as open space has become more important to sustaining the local elk herd because a recently erected big game fence along the 1 -70 corridor has effectively cut off access to elk range to the north. According to the local CDOW wildlife manager, the property is among the last strongholds of good - quality bottomland winter range in this portion of the valley. Elk are regularly present on the property during winter months. • Mule deer. The property lies within CDOW- mapped mule deer summer range and just south of mule deer winter range (Figure 6). Deer and other big game species are of economic importance to Eagle County, and contribute significantly to the biodiversity of the region. Deer find good forage in the property's riparian forests and meadows. • Black bear. The property lies within the overall range of black bear. The black bear is a wide- roaming species with a relatively large territory size requirement. Black bear are most likely to occur on the property during fall as they move out of higher elevation June 17, 2011 12 Rare Earth Science, LLC Baseline Documentation Report Berry Creek — Miller Ranch Open Space habitat looking for shrub nuts and fruits to forage, especially in mesic drainages and riparian areas. The property is mapped within a large human -bear conflict area (Figure 6). The conservation easement will help guarantee that the property will continue to provide security and a movement corridor for black bears in the region. • Mountain lion. The property lies within the overall range of mountain lion, a wide - roaming species with a relatively large territory size requirement. Mountain lion can be expected to occur on the property occasionally, following the movements of mule deer, their primary prey species. The property is mapped within a large human - mountain lion conflict area (Figure 6). The conservation easement will help guarantee that the property will continue to provide security and a movement corridor for lions in the region. 6.3 Habitat for Other Wildlife The property provides habitat or habitat linkages for small animals with large home ranges moving across the surrounding landscape. The riparian corridor on the property provides nesting and /or foraging habitat to a variety of migratory songbirds, shorebirds, and waterfowl. Great blue herons forage regularly along the riparian corridor of the Eagle River on the property for fish and amphibians. Eagle River supports a healthy trout fishery, featuring primarily rainbow trout and German brown trout, both non - native sport fish. The property lies within the historic range of the native Colorado cutthroat trout, which has been largely decimated in the region due to competition with and predation by non - native trout. Beavers have been historically and recently active on the property. A small beaver pond complex is present in the west central part of the property (Figure 4; Photopoints 5 and 6). Beaver activity may be temporary or episodic on the property. Raptors such as golden eagle, red - tailed hawk, northern harrier, rough - legged hawk, great - horned owl, and American kestrel are expected to be fairly common (year -round or seasonally) in the area and across the property as they hunt for abundant small prey. Other small mammals such as coyote, red fox, bobcat, badger, striped skunk, Western spotted skunk, raccoon, ringtail, cottontail, jackrabbit, porcupine, squirrels, chipmunks, mice, voles, and shrews are known or expected to inhabit or visit the property and utilize its habitat types. Several bat species are expected to occur as seasonal migrants or visitors on the property, finding suitable day roosts in the property's woodlands. Reptiles and amphibians anticipated to occur on the property are western terrestrial garter snake, bull snake, sagebrush lizard, plateau striped whiptail, chorus frog, Woodhouse's toad, and tiger salamander. 7 REFERENCES Andrews, R. and R. Righter. 1992. Colorado Birds. Denver: Denver Museum of Natural History. 442 pp. Bailey, A. M. and R. J. Niedrach. 1965. Birds of Colorado, Volumes I & II. Denver: Denver Museum of Natural History. June 17, 2011 13 Rare Earth Science, LLC Baseline Documentation Report Berry Creek — Miller Ranch Open Space Boyle, S. (2006). North American River Otter (Lontra canadensis): a technical conservation assessment. [Online]. USDA Forest Service, Rocky Mountain Region. Available: http: / /www.fs.fed.us /r2 /projects /scp/ assessments /northamericanriverotter.pdf [accessed on June 29, 2010]. CDOW (Colorado Division of Wildlife). 2006. Colorado's Comprehensive Wildlife Conservation Strategy and Wildlife Conservation Plans. Denver: Colorado Division of Wildlife. CDOW. 2011. Species of Concern. Accessed on May 20 at http: / /wildlife. state. co. us / WildlifeSpecies /SpeciesOfConcern /. CDOW. 2009. 2008 Elk Harvest, Hunters and Recreation Days for All Manners of Take. Viewed at http:/ /wildlife. state. co. us /NR/ rdonlyres /3C2041AE- F08C -4AEF -BB6F- 5084BE4622EA /0 /2008StatewideElkHarvest.pdf. CNHP (Colorado Natural Heritage Program). 2010. State -wide list of tracked species and communities. Accessed at http: / /www.cnhp.colostate.edu/ Co. Dept. of Agriculture. 2011. Eagle County Noxious Weed List, accessed June 16 at http: / /www.colorado.gov /cs/ Satellite? blobcol= urldata &blobheader= application %2Fpdf &blobk ey =id& blobtable= MungoBlobs &blobwhere= 1251703045130 &ssbinary=true. CWMA (Colorado Weed Management Association). 2004. Troublesome Weeds of the Rocky Mountain West. 8 Edition. Fitzgerald, J.P., C.A. Meaney, D.M. Armstrong. 1994. Mammals of Colorado. Niwot, Colorado: Univ. Press of Co. 467 pp. Hamilton, J.E. 2008. Conservation Easement Drafting and Documentation. 1st Edition. Washington D.C.: Land Trust Alliance. 324 pp. Hammerson, G.A. 1999. Amphibians & Reptiles in Colorado. 2 Ed. Boulder: Univ. Press of Colorado. 484 pp. Kingery, H.E. (Editor). 1998. Colorado Breeding Bird Atlas. Denver: Co. Bird Atlas Partnership & Co. Division of Wildlife. 636 pp. Knopf, F. L. 1989. Riparian wildlife habitats: more, worth less, and under invasion. Pp. 20 -22 In: Mutz, K., Cooper, D., Scott, M. and Miller, L., editors. Restoration, creation, and management of wetland and riparian ecosystems in the American West. Society of Wetland Scientists, Rocky Mountain Chapter, Boulder, CO. Righter, R., R. Levad, C. Dexter, and K. Potter. 2004. Birds of Western Colorado Plateau and Mesa Country. Grand Junction: Grand Valley Audubon Society. 214 pp. Sauer, J. R., J. E. Hines, and J. Fallon. 2008. The North American Breeding Bird Survey, Results and Analysis 1966 - 2007. USGS Patuxent Wildlife Research Center, Laurel, MD. Available at http: / /www.pwrc.usgs.gov /BBS /about/. USGS (U.S. Geological Survey). 2011. National Water Information System: Web Interface. At http:// nwis.waterdata.usgs.gov /co /nwis /peak/. June 17, 2011 14 Rare Earth Science, LLC Baseline Documentation Report Berry Creek — Miller Ranch Open Space Weber, William A. and Ronald C. Wittmann. 2001. Colorado Flora: Western Slope. Third Ed. Boulder: University of Colorado Press. Whitson, T.D. (Ed.) 2000. Weeds of the West. Ninth Ed. Newark: The Western Society of Weed Science, University of Wyoming, & Western U.S. Land Grant Universities Cooperative Extension Services. Yuhas, R. H. 1996. National Water Summary on Wetland Resources: Loss of Wetlands in the Southwestern United States. U.S. Geological Survey Water - Supply Paper 2425. June 17, 2011 15 Rare Earth Science, LLC Baseline Documentation Report Berry Creek — Miller Ranch Open Space FIGURES June 17, 2011 Rare Earth Science, LLC USGS 1:100,000 Topographic Ma r Map `^ ""` {� � Berry Creek - Miller Ranch Open Space Portion of Eagle County, Colorado, Mosaic 1 Conserved hite private property 1 Approximate Scale 1 inch = 1.6 miles All Locations Approx ` ' W National Forest BLM land ' —Hi9 y , Highway - ` g'r `Zr ,''' lk Lit G. - ` t, $ r�r • Ff "--J p i aa G4 1 A _ .� tti i a ` � ` t _ ti y ` ` f . EDVVARDS . ' .. 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