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HomeMy WebLinkAboutR16-107 Open Space Funds - Walking Mountain Science Center - Avon tC.c�(2- Commissioner �N t) -- - moved adoption of the following Resolution: BOARD OF COUNTY COMMISSIONERS COUNTY OF EAGLE,STATE OF`�QLORADO RESOLUTION NO.2016- 11 RESOLUTION APPROVING THE GRANT OF OPEN SPACE FUNDS TOWARD EAGLE VALLEY LAND TRUST'S WALKING MOUNTAINS SCIENCE CENTER LAND ACQUISITION AND PRESERVATION PROJECT WHEREAS, on or about July 6, 2016, Walking Mountain Science Center(hereinafter"WMSC") entered into a purchase contract to acquire ownership of a 5.8 acre property proximate to their existing campus in Avon,Colorado(the"Property"); and WHEREAS, WMSC has agreed to encumber approximately 3.51 acres of the Property, identified as Lot 2B on the draft Final Plat for Buck Creek Subdivision, Filing No. 3, attached hereto as Exhibit A, incorporated herein by this reference (hereinafter "Walking Mountains Conservation Property") with a perpetual conservation easement granted to Eagle Valley Land Trust(hereinafter"EVLT");and WHEREAS, EVLT desires to accept said conservation easement on the Walking Mountains Conservation Property in order to preserve educational values and scenic qualities;and WHEREAS, WMSC has agreed to grant to the County a perpetual Public Access Easement over the Walking Mountains Conservation Property, which Public Access Easement is acknowledged and accepted in the EVLT conservation easement;and WHEREAS, in order to simultaneously preserve the surrounding open space land surrounding the Walking Mountains Conservation Property, the Town of Avon has agreed to simultaneously convey a conservation easement to Eagle County on two parcels totaling approximately 95 acres of Town-owned land(the"Avon Conservation Property"); and •WHEREAS, the Avon Conservation Property is depicted on Exhibit B, which is attached hereto and incorporated herein by reference; and WHEREAS, the preservation of the Walking Mountains Conservation Property and the Avon Conservation Property, and the grant of the Public Access Easement to the County shall be collectively referred to herein as the"Project"; and WHEREAS, through Eagle County Resolution No. 2016-064, Eagle County established its Open Space Program which permits the acquisition and/or permanent preservation of Open Space by Eagle County or the County in partnership with other public or private entities such as the Eagle Valley Land Trust; and WHEREAS, Eagle County desires to grant One Million Dollars($1,000,000) from the Open Space Fund towards the Project through a grant to EVLT, with an additional amount to cover EVLT and County transaction costs, including but not limited to, baseline reports, stewardship endowment, project fees, legal defense, mineral and environmental analyses, title insurance, closing costs, and the like on the -s ,- + FORM Eagle County A torney`s • ice By: Eayie County Commissioners'Office Walking Mountains Conservation Property and Avon Conservation Property (collectively "Transaction Costs"); and WHEREAS, at its November 14, 2016 meeting, the Eagle County Open Space Advisory Committee, based on its findings, recommended approval of the use of One Million Dollars ($1,000,000)towards the Project and up to Fifty Thousand Dollars ($50,000) toward Transaction Costs related to the Walking Mountains Conservation Property and up to Fifty Thousand Dollars($50,000)towards Transaction Costs on the Town of Avon Conservation Property; and WHEREAS, at its regular meeting on December 13, 2016, Eagle County Board of County Commissioners considered the funding request, presentation from staff, and the recommendation of the Open Space Advisory Committee and the proposed form of documents related to the Project, including the proposed Deed of Conservation Easement for the Avon Conservation Property; and WHEREAS, subsequent to its December 13, 2016 meeting, the Town of Avon and Eagle County negotiated certain revisions to the terms of the proposed Deed of Conservation Easement for the Avon Conservation Property; and WHEREAS, the Board intends that this Resolution supersede and replace the Resolution of the Board dated December 13, 2016 approving the grant of open space funds toward Eagle Valley Land Trust's Walking Mountains Science Center Land Acquisition and Preservation Project so as to approve the negotiated and revised form of Deed of Conservation Easement for the Avon Conservation Property attached hereto as Exhibit F. NOW, THEREFORE BE IT RESOLVED by the Board of County Commissioners of the County of Eagle, State of Colorado: THAT, the Board of County Commissioners hereby specifically authorizes the expenditure of up to One Million Dollars($1,000,000) from the Open Space Fund for the Project,with an additional amount,not to exceed Fifty Thousand Dollars ($50,000) towards Transaction Costs for the Walking Mountains Conservation Property and up to Fifty Thousand Dollars ($50,000) towards the Transaction Costs for the Avon Conservation Property; That, EVLT is to be reimbursed only for eligible expenses outlined in the Funding Agreement Between Eagle County and the Eagle Valley Land Trust Related to the Walking Mountains Science Center Conservation Project; THAT, such expenditure of Open Space Funds shall be subject to County's satisfactory due diligence review and approval of the following documents, in a form substantially similar to the following attachments(without exhibits here): 1. Exhibit C: Deed of Conservation Easement,Walking Mountains Science Center Parcel; 2. Exhibit D:Walking Mountains Science Center Management Plan; 3. Exhibit E:Public Access Easement;and 4. Exhibit F: Deed of Conservation Easement,Avon Northside Parcels. THAT, the Board of County Commissioners authorizes any Commissioner to execute on its behalf any and all necessary documents, instruments, papers or other forms necessary for completion of the Project defined herein; and 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 Eagle County, 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 the 20th day of December,2016. COUNTY OF EAGLE, STATE OF COLORADO,By and Through Its BOARD OF COUNTY COMMISSIONERS ATTEST: r'. aaC�. -VIv�^ BY�Regina O'Brien I /fi() McQueeney Clerk to the Board of County Commissioners Alffse Jill •! Ryan ssioner ■ Lll� �• athy Chan4l e - enry Commissioner Commissioner -c seconded adoption of the foregoing resolution. The roll having been called,the vote was as follows: Commissioner McQueeney IQ,w` Commissioner Ryan t4-14. Commissioner Chandler-Henry This resolution passed by ` vote of the Board of County Commissioners of the County of Eagle, State of Colorado vi 0 a� � \ 4mia €*e` \ 2y g \ 9 o -, s_ i. \ O b Y 4\ z o N R G W by oO� / \ "� / \ 11 xis / \ a� 3 g° kk 4 N ,� // x 2 w 6lY CO a l. / 4e b y e )t,,, // trio / @tip / �,,,` ' A ',a s ,,. S�\ -s1/4:‘,..-,12. x `M ,..;:r=.•,, 4\ \,'a O _ fa�L U W y 'ox a ‘` z c, 0 0 \\', 4. 0., o o o Via '\ as ZCa S U U g ''' 4,, `��` `p q,'Fe -' 9 P.-1 .15, Cr .e `I x ay, \ \2 4 wi ¢ 1` o s � iI wE , o �\I ,e \ 'm o � ' -zit �P'. x I k - U W N \ w ry � I I XE a `fi ,` `� a t ss 1 g \ as 3. v;- fgF / $4 F^ '",,,-'°‘ o b-4h�x 10s il)lt ' \` 4Vb \ .f ..-'t•-,*,--,. . .: 4.., . 3 g. i / N t. of .. 0 ., . s� ro , ... .. ,.„ ,:....., , ,N„ ‘,, . :... G .1 , i ' , - toL, in .. a.f f a • c v I v ' i o < ova � o III ' --- • u is! .0 I I o 0 as C Si Y O g N LLp t;a - ..it o �o ' o ,:, 1 CU .C p 0 4,�/ IIc � After recording,please return to: Eagle Valley Land Trust Attn: Jim Daus P.O.Box 3016 Edwards,CO 81632 Any time the Property is transferred by Grantor to any third party, Grantor shall pay a transfer fee of 0.5%to Grantee and notify Grantee pursuant to the requirements of Section 11. DEED OF CONSERVATION EASEMENT Walking Mountains Science Center THIS DEED OF CONSERVATION EASEMENT ("Deed") is granted on this day of December, 2016, by WALKING MOUNTAINS, a Colorado non-profit corporation, d/b/a WALKING MOUNTAINS SCIENCE CENTER, whose address is 318 Walking Mountains Lane, Avon, Colorado 81620 ("Grantor")to EAGLE VALLEY LAND TRUST, a Colorado non-profit corporation, whose address is P.O. Box 3016, Edwards, Colorado 81632 ("Grantee"). (Grantor and Grantee are collectively referred to herein as the"Parties"). RECITALS A. Description of Property. Grantor is the owner of the fee simple interest in approximately 3.51 acres of real property located in Eagle County, Colorado, more particularly described in Exhibit A and depicted as Lot 2B in Exhibit B,both attached hereto and made a part hereof(the "Property"). B. Qualified Organization. Grantee is a "qualified organization," as defined in I.R.C. § 170(h) and a charitable organization exempt under I.R.C. § 501(c)(3), as required under C.R.S. § 38-30.5-104(2). Grantee is certified by the State of Colorado's Division of Real Estate to hold conservation easements for which a state tax credit is claimed. Grantee is also accredited by the Land Trust Accreditation Commission, a national accreditation program sponsored by the Land Trust Alliance. Grantee's primary purpose is to preserve and protect the natural, scenic, agricultural,historical, and open space resources of Eagle County, including the area in which the Property is located,by assisting landowners who wish to protect their land in perpetuity to preserve and conserve natural areas, environmentally significant land, and working landscapes for ecological, scenic, aesthetic, scientific, charitable and educational purposes. C. Conservation Purposes. According to I.R.C. § 170(h)(4)(A) and Treas. Reg. § 1.170A-14(d), the conservation purposes of a qualified conservation contribution must include 1 Exhibit C one or more of the following: (1) to preserve land for outdoor recreation by or education of the general public; (2)to protect relatively natural habitat of fish,wildlife or plants; (3)to preserve open space; and (4)to preserve historically important land or structures. The conservation purposes set forth in this Recital C and referred to hereafter in this Deed are collectively referred to as the"Conservation Values." The Conservation Values of the Property are as follows: 1) Recreation or Education [Treas. Reg. § 1.170A-14(d)(2)]. The Property is in a predominantly natural condition and features montane meadows, aspen forest, and a wooded riparian corridor along an approximately 550-foot reach of Buck Creek. The Property is intended to be used for passive public recreation and education including public trails. Such public trails are important to the local residents of Eagle County and the Town of Avon because they provide recreational opportunities in a natural and scenic setting close to an area with relatively high housing density. The public trails on the Property will also be used by Grantor for outdoor education as part of the Walking Mountains Science Center. The Science Center provides educational opportunities to residents of and visitors to the Town of Avon and the surrounding communities, and serves more than 80,000 people annually with its programs. The Easement(defined below) accommodates public use of the Property, including passive recreation, public education, and parking. 2) Open Space [Treas. Reg. § 1.170A-14(d)(4)]. The Property qualifies as open space because it is being preserved for the scenic enjoyment of the general public and pursuant to a clearly delineated federal, state or local governmental conservation policy(set forth in Recitals D and E below) and will yield a significant public benefit. a. Scenic Enjoyment. The Property's preservation will provide scenic enjoyment to the general public because the Property is in an undeveloped and natural condition, featuring a mosaic of natural vegetation communities across dramatic topography. As such,the Property adds to the scenic character, openness, and variety of the local rural landscape. The Property is visually accessible to the public from Interstate Highway 70,Nottingham Road, Buck Creek Road, and from nearby adjacent Town of Avon open space properties and the public trails located thereon, which are actively used by the citizens of the Town of Avon, Eagle County and the State of Colorado. b. Significant public benefit. There is a foreseeable trend of urbanization and rural subdivision development in the vicinity of the Property in the near future in the Town of Avon and the surrounding areas within Eagle County. The Property is zoned for townhouses, and there is a strong likelihood that development of the Property would lead to or contribute to degradation of the 2 scenic and natural character of the area. The Property also provides wildlife habitat at the site-specific level and habitat connectivity at the landscape level. Preservation of the Property will continue to provide an opportunity for the general public to appreciate the Property's scenic values within the context of the scenic Eagle Valley, which is important for preserving regional resources with the potential to provide revenue and attract tourism to the area. These Conservation Values are of great importance to Grantor, Grantee, and the residents of the Town of Avon, Eagle County, and the State of Colorado. It should also be noted that the terms of this Easement do not permit a degree of intrusion or future development that would interfere with the Conservation Values. D. State Policy Concerning Conservation Easements. 1) C.R.S. § 38-30.5-102 provides for the creation of conservation easements to maintain land "in a natural, scenic, or open condition, or for wildlife habitat, or for agricultural, horticultural, wetlands, recreational, forest or other use or condition consistent with the protection of open land, environmental quality or life sustaining ecological diversity . . ." 2) The Colorado Department of Transportation statutes (C.R.S. § 43-1-401, et seq.)provide that the "preservation and enhancement of the natural and scenic beauty of this state" are of substantial state interest. 3) C.R.S. § 33-10-101 provides "It is the policy of the state of Colorado that the natural, scenic, scientific, and outdoor recreation areas of this state are to be protected,preserved, enhanced, and managed for the use,benefit, and enjoyment of the people of this state and visitors of this state." E. Other Supporting Government Policy. 1) Eagle County Resolution No. 02-123 provides for the creation of an open space mill levy for the purpose of acquiring,maintaining, or permanently preserving open space to preserve wildlife habitat,protect working farms and ranches, conserve scenic landscapes and vistas,protect wetlands and floodplains, or provide public access points to rivers and streams. 2) Eagle County Resolution No. 16-064 establishes that certain characteristics and/or traits make a property worthy of protection through the Open Space Program, such as and not by way of limitation, fish and wildlife habitat or migration routes; working farms and ranches; scenic landscapes and vistas; wetlands, floodplains or 3 other riparian habitat; public access to rivers and streams or lands open to the public; dispersed recreation; geographic or topographic formations; rare or significant flora or fauna; cultural historic values; or other natural, open space or conservation values. 3) The 2005 Eagle County Comprehensive Plan has the following policies and strategies, including: a. Development and development patterns should preserve landscapes that include visual,historic, and archeological value(3.8.3.c). b. A variety of approaches should be utilized to preserve land as open space (3.8.4.e) including conservation easements. c. Open space should be able to serve different needs in different applications (3.8.4). F. Documentation of Present Conditions. Pursuant to Treas. Reg. § 1.170A- 14(g)(5) and in order to document the condition of the Property as of the Effective Date, a report has been prepared by Rare Earth Science, LLC and dated December 1, 2016 (the`Baseline Report"). The Baseline Report contains a natural resources inventory and also documents the Conservation Values and the characteristics, current use, and status of improvements on and development of the Property. Grantor and Grantee have viewed the Property at the time of the transfer of this Easement and each acknowledges that the Baseline Report is an accurate representation of the Property at the time of the transfer. The Baseline Report has been provided to both Parties and will be used by Grantee to assure that any future changes in the use of the Property will be consistent with the terms of this Easement. However, the Baseline Report is not intended to preclude the use of other evidence to establish the condition of the Property as of the Effective Date. G. County Funding. Grantor's purchase of the Property and this Easement were funded in part by Eagle County, a body corporate and politic,by and through the Eagle County Open Space Program(the"County"); as part of this transaction Grantor is granting a public access easement("Public Access Easement") to the County over the Property. County is entitled to a copy of any report generated in connection with the resource management for the Property. NOW, THEREFORE, in consideration of a charitable donation of a portion of the fair market value of the conservation easement interest granted by this Deed, the payment of funds by the County, the receipt and sufficiency of which are hereby acknowledged, the recitals set forth above, incorporated herein by reference, and the mutual covenants, terms, conditions, and 4 restrictions contained herein, and pursuant to the laws of the State of Colorado, Grantor voluntarily grants and conveys to Grantee and Grantee voluntarily accepts, a perpetual conservation easement in gross ("Easement"), an immediately vested interest in real property defined by C.R.S. §§ 38-30.5-101, et seq., and of the nature and character described in this Deed, for the purpose of preserving and protecting the Conservation Values in perpetuity. 1. Purpose. The purpose of this Easement is to ensure that Grantor preserve and protect in perpetuity the Conservation Values as they exist upon the Effective Date (defined below) and as they may evolve in the future, in accordance with I.R.C. § 170(h), Treas. Reg. § 1.170A-14, and C.R.S. § 38-30.5-101, et seq. ("Purpose"). To effectuate the Purpose of this Easement, the Parties agree: (i) to permit those uses of the Property that are expressly permitted by this Easement, subject to any limitations or restrictions stated herein, and those uses of the Property that do not materially adversely affect the Conservation Values; and (ii)to prevent any use of the Property that is expressly prohibited by this Easement or will materially adversely affect the Conservation Values. Nothing in this Easement is intended to compel a specific use of the Property other than the preservation and protection of the Conservation Values. 2. Rights of Grantee. To accomplish the Purpose of this Easement, this Deed conveys the following rights to Grantee: a. To preserve and protect the Conservation Values in perpetuity; b. To enter upon the Property at reasonable times to monitor Grantor's compliance with and otherwise enforce the terms of this Easement; provided that,prior to such entry, Grantee shall first provide reasonable notice to Grantor, and Grantee shall not unreasonably interfere with Grantor's use and quiet enjoyment of the Property; c. To prevent any activity on or use of the Property that is inconsistent with the Purpose of this Easement, Grantee may require the restoration of such areas or features of the Property that are damaged by an inconsistent activity or use, all as more fully set forth herein; d. To enforce the terms and provisions of this Easement; e. To place signs on the Property that identify the land as being protected by this Easement and recognizing the County's participation in the transaction resulting in this Easement, the size, number, and location of which signs are subject to Grantor's and the County's reasonable approval; and 5 f. All Development Rights as defined in Section 25 (Development Rights), except as specifically reserved by Grantor herein. Nothing in this Section 2 shall preclude the right of Grantee to enforce the preservation and protection of the Conservation Values of the Property, or any other provision of this Easement. 3. Rights Retained by Grantor. Subject to the terms and provisions of this Easement, Grantor reserves to Grantor, and to Grantor's personal representatives, heirs, successors and assigns, all rights accruing from Grantor's ownership of the Property, including: (i) the right to engage in or permit or invite others to engage in all uses of the Property that are expressly permitted by this Easement, subject to any limitations or restrictions stated herein, and those uses of the Property that do not materially adversely affect the Conservation Values; and (ii) to retain the economic viability of the Property and to retain income derived from the Property from all sources (provided that there shall be no charge by Grantor for public use of the Property under the terms of the Public Access Easement that will be granted by Grantor to County). Grantor may not, however, exercise these retained rights in a manner that is expressly prohibited by this Easement or that materially adversely affects the Conservation Values. 4. Management Plan. Grantor, Grantee and County have prepared and mutually agreed to a land management plan (the"Management Plan"or the"Plan"), a copy of which will be kept on file in the offices of Grantor and Grantee. The Property shall be operated and managed in accordance with the Management Plan or as otherwise set forth in this Easement. Grantor and Grantee shall review the Management Plan annually at the time of Grantee's monitoring of the Property, and the Plan shall be amended if determined necessary by either Party. If Grantor intends to undertake any activities not expressly permitted by this Easement or addressed in a current Management Plan, Grantor shall not undertake such activities unless and until Grantor has first prepared, and Grantee and County have approved, an amendment to the Management Plan. Any amendment to the Management Plan shall not be effective unless and until reviewed and approved by Grantee in accordance with Sections 17(Grantor's Notice) and 18 (Grantee's Approval) and by Grantor and County. 5. Property Improvements. Improvements existing as of the Effective Date are permitted. The installation, placement or construction of any other improvement is prohibited unless expressly permitted by this Section 5. 6 a. Existing Improvements. At the time of granting of this Easement, there are no improvements on the Property except for a paved Road (defined below), a dirt Trail (defined below), remnant fencing, and miscellaneous Utility Improvements (defined below). b. New Improvements. The following shall be referred to herein as "New Improvements:" 1. Grantor may place, install, construct,maintain, repair and replace the following new improvements on the Property: (i)information kiosk; and (ii) interpretive and directional signage; and (iii) one or more outdoor open-air teaching areas as set forth in the Management Plan. 2. Prior to the location, construction, replacement or enlargement of any New Improvement as permitted in this Section 5, Grantor shall notify Grantee in accordance with Section 17 (Grantor's Notice). c. Roads and Trails. For purposes of this Section, "Roads" shall mean any permanent road that is graded, improved or maintained, including any seasonal unimproved roads and two-track roads. "Trails" shall mean any unimproved or improved path, or paved or unpaved trail constructed or established by human use,but shall not include trails established by wildlife or livestock. 1. Roads. Grantor shall not construct or establish new Roads, unless approved by Grantee pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's Approval). Subject to the foregoing, Grantor may maintain and repair Roads without Grantee's permission,but Grantor may not widen or otherwise improve any Road unless approved by Grantee in accordance with Sections 17 (Grantor's Notice) and 18 (Grantee's Approval). 2. Trails. Grantor may maintain and repair any Trail existing on the Property as of the Effective Date. The Property is subject to an easement to the Town of Avon for construction of one (1)new Trail. In addition, Grantor is granting the Public Access Easement to the County which permits construction of one (1)new Trail, the location of which shall be approved by Grantee pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's Approval). Except for the two (2)new Trails described in the previous two sentences, Grantor may not construct or establish any new Trail on the Property unless approved as part of the Management Plan, or otherwise approved by Grantee pursuant to Sections 17 (Grantor's Notice) 7 and 18 (Grantee's Approval). Grantor reserves the right to make improvements to the Trails and allow use of the Trails as may be required under the law to comply with 42 U.S.C. §§12101 et seq. d. Fences. Grantor may maintain,repair, replace or remove existing fences. Grantor may construct, maintain,repair and replace new fences anywhere on the Property,provided the location and design of such fences are set forth in the Management Plan. e. Utility Improvements. Existing utility improvements, if any, including but not limited to: (i) transformers and power lines; (ii) telecommunication lines; (iii) domestic water pipelines; (iv) septic systems or sewer pipelines; and (v) storm water drainage pipelines ("Utility Improvements"),may be maintained,repaired or replaced with an improvement of similar size and type at their current locations on the Property without further permission of Grantee. The construction, maintenance, repair and replacement of renewable energy generating systems including,but not limited to, wind, solar, geothermal or hydroelectric, solely for permitted uses on the Property is permitted provided that such activity is consistent with the Purpose, and has been approved by the County in its discretion (also, "Utility Improvements"). Grantor may install new Utility Improvements, or permit the installation of new Utility Improvements for service to adjacent land,provided such Utility Improvements are installed underground. Except as provided in the foregoing sentences, Grantor shall not install,place, construct, or enlarge any other new Utility Improvements without Grantee's approval pursuant to Sections 17 (Grantor Notice) and 18 (Grantee's Approval). Following the maintenance, repair, replacement, enlargement or construction of any Utility Improvements by Grantor, Grantor shall promptly restore and re-vegetate any disturbed area to a condition consistent with the Purpose. Any easement,right of way or other interest granted to a third party by Grantor or otherwise reserved by Grantor to be used for Utility Improvements is subject to Section 7.g(Easements, Rights of Way or Other Interests). f. Signs. Grantor may place and maintain interpretive and directional trail signs provided such signs do not exceed nine(9) square feet. Grantor may place larger signs on the Property with Grantee's approval pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's Approval). g. Motor Vehicles. Grantor, and any other entity or person Grantor authorizes,may use motorized vehicles, including without limitation all-terrain vehicles and agricultural and construction vehicles (i) on any Roads, and (ii) on any portion of 8 the Property that is not a Road, provided that such vehicles shall be used only for property management purposes including,but not limited to, maintenance of the Roads and Trails,weed control, and habitat restoration. Grantor reserves the right to park motor vehicles on the existing Road. Notwithstanding the foregoing, Grantor shall have the right to permit motorized access on the Trails in order to comply with 42 U.S.C. §§ 12101 et seq. Any portion of the Property disturbed due to the use of motor vehicles shall be restored to a condition as close to its original condition as reasonably practicable. 6. Resource Management Grantor recognizes the importance of good resource management and stewardship to preserve and protect the Conservation Values. To this end, Grantor shall conduct the following uses of the Property in accordance with the provisions below. a. Relatively Natural Habitat. Grantor may conduct any activities to create, maintain, restore, or enhance wildlife habitat and native biological communities on the Property,provided that such activities do not temporarily or permanently have a material adverse effect on the Conservation Values. If such activities could in any manner temporarily or permanently have a material adverse effect on the Conservation Values, Grantor must first notify Grantee and obtain Grantee's consent pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's Approval). b. Mineral Extraction. As of the Effective Date, Grantor owns all of the coal, oil, gas hydrocarbons and other minerals (the"Minerals") located on,under, or in the Property or otherwise associated with the Property. This Easement expressly prohibits the mining or extraction of Minerals using any surface mining method. Grantor may permit subsurface access to Minerals from locations off the Property, provided that Grantor shall not permit such subsurface access to disturb the subjacent and lateral support of the Property. c. Timber. On a limited and localized basis, Grantor may cut or prune trees, shrubs and other vegetation on the Property to control insects and disease, to control invasive non-native species, and to prevent personal injury and Property damage. Grantor may conduct tree thinning activities to mitigate forest fires, and to maintain a healthy ecosystem on the Property in accordance with the Management Plan. Commercial logging is prohibited. Large-scale alteration or removal of native trees, shrubs and other vegetation from the Property may only occur with Grantee's consent pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's Approval). Re-vegetation of the Property including planting of shrubs and trees is permitted in a manner consistent with the Purpose. 9 d. Recreation. Grantor may undertake, or permit members of the public to undertake passive, non-motorized recreation on the Property, including,but not limited to,wildlife watching, hiking,biking, and hunting in accordance with the regulations as set forth by the Colorado Division of Parks and Wildlife, and snowshoeing and cross-country skiing,provided they are undertaken in accordance with the Management Plan. e. Weeds. The Parties recognize the potential negative impact of noxious weeds and invasive plant species on the Conservation Values. Grantor shall manage noxious weeds and invasive plant species in accordance with the Management Plan. Grantee has no responsibility for the management of noxious weeds and invasive plant species. f. Water Rights. No water rights are encumbered by this Easement. g. Public 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 grant the Public Access Easement to the County in conjunction with the granting of this Easement, and to permit access to the Property, in accordance with the Public Access Easement and Management Plan, for use by the public for purposes permitted by this Easement. h. Educational Activities. Grantor may undertake, or permit members of the public to undertake, educational activities, such as interpretive walks and talks, field science programs, and ecological research and restoration. 7. Restricted Practices. a. Subdivision. Grantor and Grantee agree that the division, subdivision or de facto subdivision of the entire Property, whether by legal or physical process, into two or more parcels of land or partial or separate interests (including,but not limited to, condominium interests or the partition of undivided interests)is prohibited. At all times Grantor shall own and convey the Property as a single parcel which shall be subject to the terms and conditions of this Easement. Grantor may own the Property by joint tenancy or tenancy in common; provided, however,that Grantor shall not undertake any legal proceeding to partition, subdivide or divide in any manner such undivided interests in the Property. 10 b. Surface Disturbance. Except as otherwise permitted by this Deed, Grantor shall not alter the surface of the land, including without limitation,moving, excavating or removing soil, sand, gravel,rock, peat or sod,unless such alteration is associated with permitted acts on and uses of the Property and is consistent with the Purpose. c. Commercial or Industrial Activity. Grantor shall not conduct industrial uses of the Property. Grantor has the right to collect fees for its educational and recreational programs. Grantor may conduct other commercial uses on the Property with Grantee's approval pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's Approval). d. Feed Lot. Grantor shall not establish or maintain a feed lot. For purposes of this Easement, "feed lot"means a permanently constructed confined area or facility which is used and maintained continuously and exclusively for purposes of warm- up or fattening large numbers of livestock for market. e. Trash. Grantor may not dump or accumulate any kind of trash, sludge, or refuse on the Property, except for trash contained within wildlife resistant trash containers. f. Hazardous Materials. Grantor may use agri-chemicals on the Property in accordance with all applicable federal, state or local laws. Otherwise, the treatment,permanent storage, disposal or release of hazardous materials on, from or under the Property is prohibited. For the purpose of this Easement, hazardous materials shall mean any hazardous or toxic material or waste that is subject to any federal, state, or local law or regulation. Notwithstanding anything in this Deed to the contrary, this prohibition does not impose any liability on Grantee or County for hazardous materials, nor does it make Grantee or County an owner of the Property, nor does it permit or require Grantee or County to control any use of the Property that may result in the treatment, storage, disposal or release of hazardous materials within the meaning of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA"). g. Easements,Rights of Way or Other Interests. Except as otherwise permitted in this Deed,the conveyance or modification of an easement, right of way, or other similar interest is prohibited without Grantee's approval pursuant to Sections 17 (Grantor Notice) and 18 (Grantee's Approval). 11 • h. Other Restricted Uses. Grantor shall not construct or establish golf courses, sod farms,helicopter pads, and airstrips. i. Telecommunications Facilities. Grantor shall not erect, construct, install, relocate, or use a communication facility, telecommunication facility, network element, telecommunication equipment, or any other equipment or material that may be used for telecommunications or to provide telecommunication services (as such terms are defined in The Federal Telecommunications Act of 1996), without Grantee's approval pursuant to Sections 17 (Grantor Notice) and 18 (Grantee's Approval), and the County's approval in its sole discretion. j. Wildfire. In the event of a wildfire, any and all methods of extinguishing the fire are permissible. Also, in the event of a wildfire, the Property is available for staging of fire activities and camping for firefighters depending on the severity of an event. 8. Responsibilities of Grantor and Grantee Not Affected. Other than as specified herein, this Easement is not intended to impose any legal or other responsibility on Grantee, or in any way to affect any existing rights or obligations of Grantor as owner of the Property. Additionally,unless otherwise specified below, nothing in this Easement shall require Grantor to take any action to restore the condition of the Property after any Act of God or other event over which Grantor had no control,provided, however, that Grantee shall have the right to bring an action at law or in equity for trespass or any other appropriate cause of action against any third party who violates the terms of this Easement. Grantor shall continue to be solely responsible and Grantee shall have no obligation for the upkeep and maintenance of the Property and Grantor understands that nothing in this Easement relieves Grantor of any obligation or restriction on the use of the Property imposed by law. Among other things, this shall apply to: a. Taxes. Grantor shall be solely responsible for payment of all taxes and assessments levied against the Property. If Grantee is ever required to pay any taxes or assessments on its interest in the Property, Grantor will reimburse Grantee for the same. If for any reason Grantor fails to pay any taxes, assessments or similar requisite charges, Grantee may pay such taxes, assessments or similar requisite charges, and may bring an action against Grantor to recover all such taxes, assessments and similar charges plus interest thereon at the rate charged delinquent Property taxes by the county treasurer's office in which the Property is located. 12 b. Liability. Grantor shall indemnify, defend, and hold Grantee and the County and its members, officers, directors, employees, agents, and contractors (collectively, the "Indemnified Parties")harmless from and against any and all loss, damage, cost, or expense, including reasonable attorneys' fees, arising from or in any way related to: (i) injury to or the death of any person, or damage to property, occurring on or about or related to the Property,unless due solely to the act or omission of the Indemnified Parties; (ii)the obligations under this Easement; (iii) the presence or release of hazardous materials on, under, or about the Property; (iv) the existence of any underground storage tanks on the Property; or(v) the violation or alleged violation of, or other failure to comply with any state, federal, or local law, regulation, or requirement, including, without limitation, CERCLA and state hazardous waste statutes,by any person other than any of the Indemnified Parties, in any way affecting, involving, or relating to the Property. Grantee shall indemnify, defend and hold Grantor and its assigns, successors and heirs harmless from and against any and all loss, cost or expense, including reasonable attorney's fees, arising from or in any way related to injury to or death of any person occurring on or about or related to the Property arising out of the Indemnified Parties' actions on the Property. Nothing herein shall create liability for County as a result of its contribution to the Property and this Easement. 9. Enforcement. a. General Provisions. Grantee shall have the right to prevent and correct or require correction of violations of the terms. If Grantee determines that immediate entry is required to inspect for,prevent, terminate, or mitigate a violation of the terms of this Easement, Grantee may enter the Property without advance notice. If such entry occurs, Grantee shall notify Grantor and the County within a reasonable time thereafter. If Grantee determines that a violation has occurred, Grantee shall notify Grantor and County, of the nature of the alleged violation in writing. Upon receipt of said notice, Grantor shall immediately cease the alleged violation and within thirty(30) days either(i) if necessary, provide a written plan for restoration and remediation of the Property and, once approved by Grantee and County, restore or remediate the Property in accordance with the plan; or(ii)provide written documentation demonstrating that the activity is permitted and is not a violation. Grantee's acceptance of Grantor's actions under (i) or(ii) above shall be in Grantee's sole discretion, and shall be confirmed by Grantee in writing. If Grantor is unable or unwilling to immediately cease the alleged violation, and comply with (i) or(ii) above, the Parties agree to resolve the dispute through mediation as set in forth in Section 32 or judicial process. At any point in time, Grantee may take appropriate legal action, including seeking an injunction, to stop the alleged violation. County shall have no obligation to 13 enforce the terms of this Easement. County may,but is not obligated to, participate in any mediation pursuant to Section 32. b. Costs of Enforcement. Any costs incurred by Grantee in enforcing the terms of this Easement against Grantor, including, without limitation, costs and expenses of suit, and attorneys' fees necessitated by Grantor's violation of the terms of this Easement, shall be borne by Grantor. If the deciding body determines that Grantor is the prevailing party on all claims in any court action to enforce the terms of this Easement, the Parties shall each be responsible for their own costs and attorney fees. Any costs of restoration necessitated by Grantor's violation of the terms of this Easement, shall be borne by Grantor. c. Grantee's Discretion. Grantee's remedies described in this Section 9.c shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity, including the right to recover any damages for loss of Conservation Values as described in C.R.S. § 38-30.5-108. The failure of Grantee to discover a violation or to take action shall not waive any of Grantee's rights, claims or interests in pursuing any such action at a later date. 10. Transfer of Easement. a. Grantee shall have the right to transfer this Easement to any public agency or private non-profit organization that, at the time of transfer: (i) is a "qualified organization"under I.R.C. § 170(h); (ii) is authorized to hold conservation easements under C.R.S. §§38-30.5-101, et seq. and C.R.S. §12-61-720, (iii) expressly agrees in writing to abide by the terms of this Easement and to assume the responsibility imposed on Grantee by this Easement; (iv) is approved in writing by Grantor, such approval not to be unreasonably withheld, conditioned or delayed; and(v) is approved in writing by the County in its sole discretion. Grantee shall provide Grantor and County with a written request to assign this Deed at least forty-five(45) days prior to the date proposed for the assignment transaction. b. If Grantee ever ceases to exist or no longer qualifies under federal and state law to hold conservation easement interests, or if Grantee desires to transfer this Deed to a qualified organization having similar purposes as Grantee,but Grantor has refused to approve the transfer, a court with jurisdiction shall transfer this Deed to another qualified organization having similar purposes and that agrees to abide by the terms of this Easement and to assume the responsibility imposed on Grantee by this Easement, and which has been approved by the County in its sole 14 discretion, provided that Grantor shall have adequate notice of and an opportunity to participate in the court proceeding leading to the court's decision on the matter. c. Upon compliance with the applicable portions of this Section 10, the parties shall record an instrument completing the assignment in the Eagle County Clerk and Recorder's Office. Assignment of this Easement shall not be construed as affecting this Easement's perpetual duration and shall not affect this Easement's priority against any intervening liens, mortgages, easements, or other encumbrances. 11. Transfer of Property. a. Any time the Property or a portion thereof is transferred by Grantor to any third party, Grantor shall pay a transfer fee of 0.5% of the current fair market value of the Property to Grantee to be used for purposes consistent with Grantee's mission. 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 Property, including, without limitation, a leasehold interest. Grantor shall notify Grantee and County in writing within forty-five (45)business days prior to the transfer of the Property, using the form in Exhibit C attached hereto and made a part hereof, in order to accommodate the prior approval required by Section 11.b below. Within five(5)business days after the transfer of the Property, Grantor shall provide Grantee with a copy of the new ownership deed. Grantee reserves the right to record a notice of transfer fee in the official real property records of Eagle County, Colorado. This provision is intended to run with the land for perpetuity, and to touch and concern the Property burdened by this easement by providing Grantee a contribution toward its stewardship, enforcement and defense of this Easement. If a fee is attributable to a transfer of property classified as "residential real property," as defined in C.R.S. § 38-35- 127(2)(e),then the Grantee covenants and agrees that the fee shall be used for the purposes specified in C.R.S. § 38-35-127(2)(b)(V) in a manner consistent with the Grantee's mission. b. County provided funding through its Open Space Program for Grantor's acquisition of fee title to the Property above and beyond this Deed; therefore, any voluntary sale, conveyance, transfer or disposal of all or any portion of the Grantor's interest in the Property("Sale")to a third party, shall require thirty(30) day's prior written notice to the County and either(i)prior written approval of the County; or(ii) a refund to the County prior to or at the time of closing on the Sale, 15 of all or any part of the County's contribution toward the original purchase price for the Property and this Conservation Easement, as County may determine in its sole discretion. 12. Condemnation. Grantor shall notify Grantee and County immediately of any communication or notice received concerning any proposed taking or condemnation affecting the Property, and Grantee and County shall have the right,but not the obligation, to participate in any proceedings. Grantee and County may pursue any remedies in law or in equity, including opposition to the condemnation of the Property. If the Property or any part thereof or interest therein is sold or conveyed to a condemning authority under threat of condemnation or taken through condemnation or other involuntary conversion, Grantee and County shall be entitled to compensation determined as provided in Section 14. 13. Termination or Extinguishment of Easement. Except as provided in Section 12 (Condemnation), this Easement or any part hereof may only be terminated or extinguished by judicial proceedings in a court of competent jurisdiction. The only ground upon which this Easement can be terminated or extinguished is the total loss of all Conservation Values. If termination or extinguishment occurs, Grantee and County shall be entitled to compensation determined as provided in Section 14. 14. Compensation upon Condemnation, Termination, or Extinguishment a. The Parties acknowledge that an appraisal of the Property has been completed that indicates that the fair market value of the Easement is ninety-one percent(91%) of the full fair market value of the Property unrestricted by this Easement ("Proportionate Value Percentage"), which percentage shall remain constant and shall be applied pursuant to Treas. Reg. § 1.170A-14(g)(6)(ii). b. If the Property is condemned, in whole or in part, as discussed in Section 12, or if this Easement is terminated or extinguished pursuant to Section 13 (Termination or Extinguishment of Easement), Grantee shall be entitled to a share of the proceeds of such action at least equal to the Proportionate Value Percentage of the full fair market value of the Property unrestricted by this Easement pursuant to Treas. Reg. § 1.170A-14(g)(6)(ii) ("Grantee's Proceeds"). Any proceeds of such action other than Grantee's Proceeds shall be defined as "Grantor's Proceeds." Grantee's Proceeds and Grantor's Proceeds are collectively referred to as "Proceeds". The first$1,000,000 of any Proceeds shall be remitted by Grantor and Grantee to the County. Grantor shall not voluntarily accept proceeds equal to 16 less than full fair market value of the affected Property unrestricted by this Easement without the approval of Grantee and County. c. Grantee's use of its share of such proceeds shall comply with Treas. Reg. § 1.170A-14(g)(6). d. Grantee's remedies described in this Section shall be cumulative and shall be in addition to any and all remedies now or hereafter existing at law or in equity, including the right to recover any damages for loss of Conservation Values as described in C.R.S. § 38-30.5-108. 15. Perpetual Duration. This Easement shall be a servitude running with the land in perpetuity. The provisions of this Easement that apply to Grantor or Grantee shall also apply to their respective agents,heirs, executors, administrators, assigns, and all other successors as their interests may appear; provided, however, that each party's rights and obligations under this Easement shall terminate(as to such party,but not as to such party's successor, who shall be bound as provided herein)upon a transfer of the party's entire interest in this Easement or the Property, except that liability of such transferring party for acts or omissions occurring prior to such transfer shall survive the transfer. 16. Change of Circumstance. Grantor has considered that acts or uses restricted or prohibited by this Deed may become more economically valuable than the permitted uses and acts. It is the intent of both Grantor and Grantee that such circumstances shall not justify the termination or extinguishment of this Easement pursuant to Section 13. In addition, the inability to carry on any or all of the permitted uses, or the unprofitability of doing so, shall not impair the validity of this Easement or be considered grounds for its termination or extinguishment pursuant to Section 13. 17. Grantor's Notice. Where Grantor's notice is required in this Deed, Grantor shall notify Grantee and County in writing not less than thirty(30) calendar days prior to the date Grantor intends to undertake the activity in question. The written notice shall describe the proposed activity in sufficient detail (i.e. location, size, scope, design, nature)to allow Grantee to evaluate the consistency of the proposed activity with the pertinent terms of this Easement. 18. Grantee's Approval. Where Grantee's approval is required in this Deed, Grantee shall consult with the County and shall grant or withhold its approval in writing (and provide the County with a copy of such notice) within thirty(30) calendar days of receipt of Grantor's written notice thereof. Grantee's decision may be withheld if Grantee is unable to immediately evaluate the proposed action. Grantor shall not engage in the proposed 17 act or use until Grantor receives Grantee's approval in writing. 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 if Grantee reasonably determines that there is any risk that the activity as proposed is not consistent with the Purpose. Grantor shall pay any and all costs associated with the evaluation of the proposed use or activity, including,but not limited to, staff time, legal fees, and resource specialist fees. 19. Notices. Any notice that either party is required to give to the other in writing shall be transmitted via(i)hand delivery, (ii)U.S. mail, (iii) overnight delivery service that provides proof of delivery, or(iv) any other delivery service mutually agreed to by the Parties in writing, to the following addresses, which addresses may change from time to time by a party giving written notice in the manner set forth above: Grantor: Walking Mountains Science Center 318 Walking Mountains Lane P.O. Box 9469 Avon, Colorado 81620 Grantee: Eagle Valley Land Trust P.O. Box 3016 Edwards, Colorado 81632 County: Eagle County Open Space PO Box 850 500 Broadway Eagle, CO 81631 Phone: 970-328-8698 With a copy to: Eagle County Attorney's Office PO Box 850 500 Broadway Eagle, CO 81631 Phone: 970-328-8685 20. Liens on the Property. No provisions of this Easement should be construed as impairing the ability of Grantor to use this Property as collateral for subsequent borrowing. Any mortgage or lien arising from such a borrowing is subordinate to this Easement. 18 21. No Merger. Unless the Parties expressly state that they intend a merger of estates or interests to occur, then no merger shall be deemed to have occurred hereunder or under any document executed in the future affecting this Easement. 22. Grantor's Representations and Warranties. a. Grantor warrants that Grantor has good and sufficient title to the Property, free from all liens and encumbrances except ad valorem property taxes for the current year, and other interests of record. b. Grantor represents that upon information and belief: i. At the time of executing this Deed, no hazardous substance or toxic waste is currently being treated, stored, used, disposed of, deposited, or transported, in, on, or across the Property by Grantor, and Grantor is not aware of any underground storage tanks located on the Property; ii. At the time of executing this Deed, the Property is in compliance with all federal, state, and local laws, regulations, and requirements applicable to the Property and its proposed use as open space; iii. At the time of executing this Deed, there is no pending or threatened litigation relating to the Property of which Grantor is aware; and iv. At the time of executing this Deed, no investigations or proceedings are now pending, and no notices, claims, demands, or orders have been received, arising out of any violation or alleged violation of, or failure to comply with, any federal, state, or local law, regulation, or requirement applicable to the Property or its use of which Grantor is aware. 23. Acceptance. Grantee hereby accepts without reservation the rights and responsibilities conveyed by this Deed. 24. General Provisions: a. Severability. If any provision of this Easement, or the application thereof to any person or circumstance, is found to be invalid, the remainder of the provisions of this Easement, or the application of such provision to persons or circumstances 19 other than those as to which it is found to be invalid, as the case may be, shall not be affected thereby. b. Captions. The captions in this instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon construction or interpretation. c. Waiver of Defenses. Grantor hereby waives any defense of laches, estoppel or prescription and acknowledges and agrees that the one-year statute of limitation provided under C.R.S. § 38-41-119 does not apply to this Easement, and Grantor waives any rights of Grantor pursuant to such statute. d. Controlling Law and Interpretation. This Easement shall be performed and broadly interpreted under the laws of State of Colorado, resolving any ambiguities and questions of the validity of specific provisions in favor of maintaining the Purpose of this Easement. Any decisions resolving such ambiguities shall be documented in writing. e. Counterparts. The parties may execute this instrument in two or more counterparts which shall, in the aggregate,be signed by all Parties; each counterpart shall be deemed an original instrument as against any party who has signed it; all counterparts, when taken together, shall constitute this instrument. f. Amendment. If circumstances arise under which an amendment to or modification of this Easement would be appropriate, Grantor and Grantee are free to jointly amend this Easement; provided that no amendment shall be allowed that will confer a private benefit to Grantor or any other individual greater than the benefit to the general public(see Treas. Reg. § 1.170A-14(h)(3)(i)) or result in private inurement for a Board member, staff or contract employee of Grantee(see Treas. Reg. § 1.501(c)(3)-1(c)(2)), or affect the qualifications of this Easement under any applicable laws. Any amendment shall be consistent with Grantee's policies,must have neutral or beneficial effect on the Property's Conservation Values, as determined by Grantee in its sole discretion, must be consistent with the Purpose, shall not affect the perpetual duration of this Easement, and shall be approved by Eagle County in its sole discretion. Grantor shall pay any and all costs, including staff time and attorney's fees associated with any amendment proposed by Grantor; provided that Grantee first provides Grantor with an estimate of such fee. Any amendment must be in writing, signed by both Parties, and recorded in the official records of Eagle County, Colorado. 20 g. Entire Agreement. This instrument sets forth the entire agreement of the Parties with respect to the terms of this Easement and supersedes all prior discussions, negotiations,understandings, or agreements relating to the terms of this Easement, all of which are merged herein. 25. Development Rights. Grantor hereby grants to Grantee all development rights associated with the Property, except as specifically reserved to Grantor herein("Grantee's Development Rights"), and the Parties agree that Grantee's Development Rights shall be held by Grantee in perpetuity in order to fulfill the Purpose of this Deed, and to ensure that such rights are forever released and terminated as to Grantor. Grantee's Development Rights shall not be utilized by Grantee on or off of the Property. 26. Recording. Grantor shall record this Deed in a timely fashion in the official real Property records of Eagle County, Colorado, and Grantee may re-record it at any time as may be required to preserve its rights in this Easement. 27. No Third Party Enforcement. This Deed is entered into by and between Grantor and Grantee and does not create rights or responsibilities for the enforcement of the terms of this Easement in any third parties except as expressly reserved herein. 28. Joint and Several Liability. If Grantor at any time owns the Property in joint tenancy or tenancy in common, Grantor shall be jointly and severally liable for all obligations set forth in this Easement. 29. Ownership by Single Entity Consisting of Multiple Parties. If Grantor at any time is an entity which consists of shareholders, partners or members, such Grantor entity is required to include in its operating agreement,bylaws or other documents setting forth the rights and responsibilities of the entity, the right to assess or to otherwise collect payment from such shareholders, partners or members for any monetary or other obligations set forth in this Easement. Grantor shall provide a copy of such documentation at any time upon Grantee's request. 30. Environmental Attributes. Grantor hereby reserves all Environmental Attributes associated with the Property. "Environmental Attributes" shall mean any and all tax or 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 30 shall modify the restrictions imposed by this Easement or otherwise impair the preservation and protection of the Conservation Values. 21 31. Mediation of Disputes. If Grantee or Grantor has an enforcement dispute as set forth in Section 9, or if Grantee denies a request by Grantor for approval pursuant to Section 18, 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. County may,but shall have no obligation to,participate in any mediation. 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. 32. Force Majeure. Grantor shall not be obligated to send any prior notice to Grantee, and Grantee shall not be entitled to bring any action against Grantor, with respect to any 22 prudent, good faith activity undertaken by Grantor to prevent, abate, or mitigate injury to the Property immediately before, during, or immediately following fire, flood, storm, earth movement, acts of war, and similar causes beyond the control of Grantor. Grantor will promptly inform Grantee of injury to the Property caused by such events or actions. 31. Tax Benefits. Grantor acknowledges that Grantor is responsible for obtaining legal and accounting counsel to advise Grantor regarding the applicability of federal or state tax benefits that might arise from the donation of the Easement. Grantee makes no representation or warranty that Grantor will receive tax benefits for the donation of the Easement. 32. Authority to Execute. Each party represents to the other that such party has full power and authority to execute and deliver this Deed, and perform its obligations under this Easement, that the individual executing this Deed on behalf of said party is fully empowered and authorized to do so, and that this Deed constitutes a valid and legally binding obligation of said party enforceable against said party in accordance with its terms. 33. Effective Date. The"Effective Date" of this Deed shall be the date of its recording in the County Clerk and Recorder's Office. 34. County as Third Party Beneficiary. Eagle County is not a party to this Deed but is made an intended express third party beneficiary of all rights,remedies,benefits and privileged granted to Eagle County herein. Notwithstanding the foregoing, in no event shall Eagle County's status as an intended and express third party beneficiary hereunder confer any obligation, duty or other responsibility, whether arising as a matter of law, by contract or otherwise upon Eagle County unless expressly set forth herein. TO HAVE AND TO HOLD, this Deed of Conservation Easement unto Grantee, its successors and assigns, forever. [SIGNATURE PAGES TO FOLLOW] 23 IN WITNESS WHEREOF, Grantor and Grantee, intending to legally bind themselves, have set their hands on the date first written above. GRANTOR: WALKING MOUNTAINS, a Colorado non-profit corporation By: Name: Title: STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this day of , 2016,by as of Walking Mountains, a Colorado non-profit corporation d/b/a Walking Mountains Science Center. Witness my hand and official seal. My commission expires: Notary Public 24 GRANTEE: EAGLE VALLEY LAND TRUST, a Colorado non-profit corporation By: Jim Daus, Executive Director STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this day of , 2016,by Jim Daus, Executive Director of the Eagle Valley Land Trust, a Colorado non-profit corporation. Witness my hand and official seal. My commission expires: Notary Public 25 EXHIBIT A Legal Description of the Property Lot 2B, Final Plat, Buck Creek Subdivision, Filing No. 3, County of Eagle, State of Colorado 26 EXHIBIT B Map of the Property c. [8 3I \ 2 4m 4y:y om2 p \ =3 21 � 14ss9Q4 4 it TP s v '3 g� e 9 e o d \ 3 , g o i o R / \ pp 1 gCu / \ 5.a3 ° II - .I't // '6 Q" , >�/ / d- d a N N' G. U W .,s 8 \\`. o \FO 0. ' \\ +\ $i' t a 3 _ N g o i�'' ' ' � \ :1 i°" A, 8 1 _- .s' ‘s• _ S 3 S c a J 1 ` '�i !it \\E €W o Q y o W w O i k ‘'S Hitt ws k 1 - �a I\i ,.- . - E° g q X � 1 a 0] d i IIN'3 RI `� •< 1.," ,t to a _ �� \ t a a s !N 6 € d �hhh A, \ .s it IV 5 , , y , � b v a ,„,' 6 w !„, 0 4.99°6 ail tzo k8 zip\ 1.19 27 EXHIBIT C Sample Notice of Transfer of Property To: Eagle Valley Land Trust ("Grantee") From: [Insert name of fee owner] ("Grantor") Pursuant to Section 11 of the Deed of Conservation Easement recorded (date) under Reception No. , Grantee is hereby notified by Grantor of the proposed transfer of the fee simple interest in the subject Property legally described in Exhibit A attached hereto to be 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 , 20_,by as of Witness my hand and official seal. My commission expires: Notary Public Date: 28 r �- r g t )i .,s 4 7 T� �R bfi Y tat Walking Mountains Science Center Management Plan Walking Mountains Science Center ("WMSC") is the current owner of Lot 2B, Buck Creek Subdivision, Filing No. 3, Town of Avon, County of Eagle, State of Colorado (the "Property"), generally depicted on Exhibit A attached hereto and made a part hereof, which contains approximately 3.51 acres of land encumbered by that certain Deed of Conservation Easement granted to Eagle Valley Land Trust ("EVLT") and recorded on at Reception No. in the real property records of the Clerk and Recorder's Office of Eagle County, Colorado (the "Conservation Easement"). Capitalized terms not defined in this Plan shall have the meanings identified in the Conservation Easement. The purpose of the Conservation Easement is to preserve and protect the Conservation Values as that term is defined in the Conservation Easement. The Conservation Values generally include public recreation and the preservation of open space (scenic enjoyment of the general public). This management plan (the "Plan") has been created to outline specific strategies to further protect and maintain the Conservation Values. The Property is adjacent to additional land owned by WMSC and used for a science center and future staff housing, additional land consisting mainly of floodplain and wetlands (the "Other WMSC Land"), as well as approximately 95 acres of property owned by the Town of Avon and preserved by a conservation easement granted to Eagle County (the "Avon Northside Parcel"). Acquisition and permanent protection of the Property through the Conservation Easement and the contemporaneous preservation of the Avon Northside Parcel were funded in part by a grant from Eagle County, by and through the Eagle County Open Space Program (the "County"). Any amendment to this Management Plan must be approved in writing by WMSC, EVLT and the County. WMSC intends to employ sound management and land conservation practices to preserve the Property in a natural, scenic and open condition. All use and management of the Property must be consistent with the terms of the Conservation Easement. 1 Overall Management: WMSC shall periodically walk the Property to notice any changes, pick up any found inorganic debris, and take reasonable steps to address any changes that are noticed that adversely impact the Property's natural condition and the Conservation Values. WMSC shall otherwise manage the Property for the uses permitted under the Conservation Easement. Primary Uses: The Property is owned and managed by Walking Mountains Science Center, an organization whose primary mission is to "To awaken a sense of wonder and inspire environmental stewardship and sustainability through natural science education. Therefore, the primary purpose of the Property is to provide conservation and science educational programing. These programs include guided hikes, naturalist programs, and other educational activities designed to inspire a personal connection to nature. This Plan anticipates that low impact activities coordinated by WMSC will be the primary use on the Property. These activities include: • Hiking/nature walks • Birdwatching/wildlife watching • Astronomy • Educational games and activities; and • Picnicking Public Access: As part of the land acquisition effort, the County acquired that certain Public Access Easement recorded on at Reception No. in the real property records of the Clerk and Recorder's Office of Eagle County, Colorado. Public use of the property is permitted pursuant to the Public Access Easement and other public access is permitted by WMSC provided such access is not harmful or disruptive to WMSC education programs and activities and does not cause damage to the natural condition of the Property. WMSC understands that access is to be denied only as set forth in the Public Access Easement, if and to the extent that public use meaningfully interferes with its use of the Property for educational purposes. Rules and Regulations: • Property is available to public use sunrise to sunset; • No fires or fireworks; 2 • No carrying or discharge of firearms or weapons of any kind; • Dogs must be leashed at all times; • Dog owners must remove dog waste; • No music audible to other users; • No frisbee or frisbee golf; • No organized games or events without prior approval from WMSC; • No motorized use is allowed unless contained on Walking Mountains Lane or used for land management activities undertaken in accordance with this Plan or the Conservation Easement Outdoor Teaching Areas: WMSC may establish one or more outdoor teaching areas that are limited and localized and contain small seating areas of wood chips or pea gravel and wood benches or rocks or similar installations. Trails: The County may establish one (1) trail on the Property (the "County Trail") in accordance with the Public Access Easement, for non-motorized use except for property management purposes, emergencies, or as otherwise required by law. The County Trail shall be no more than three feet wide (or wider to comply with the Americans with Disabilities Act or other pertinent regulations), and shall contain a soft surface, unless otherwise approved by WMSC and EVLT. If constructed by the County, the trail shall be maintained by the County, unless otherwise agreed to in writing by County and WMSC. The location of the County Trail must be approved by EVLT in accordance with the Conservation Easement. The Property is subject to an easement for one (1) trail held by the Town of Avon (the "Town Trail"). The Town of Avon may construct and maintain the Town Trail in the location identified in the Town's easement, provided that the Town Trail shall be no more than three feet wide (or wider to comply with American's with Disabilities Act or other pertinent regulations), and shall contain a soft surface, unless otherwise approved by WMSC and EVLT. Maintenance of the Town Trail will be performed by WMSC, unless otherwise agree to in writing between the Town of Avon and WMSC. Any additional trails are subject to EVLT's approval as set forth in the Conservation Easement. Fences: WMSC may maintain and repair existing fences with similar materials. New fencing shall be constructed to blend in with the natural environment to protect the scenic view of the Property. 3 Vegetation Management: Noxious weeds present a potentially serious threat to the Conservation Values of the Property. WMSC shall control weeds on the Property, including but not limited to, those weeds required to be controlled in accordance with the State of Colorado's noxious weed lists and Eagle County's Weed Management Plan. Weed control may be through cultural, mechanical, biological or chemical methods, as appropriate for the target weed species. If pesticides or herbicides are applied, WMSC will only use chemicals approved for the intended application, and will use them in accordance with the specific labeling instructions to comply with state law. WMSC will monitor the Property to ensure that weed control efforts, if necessary, are successful and that new populations do not become established. Signage: Directional, interpretive and regulatory signage installed in a manner consistent with the Conservation Easement is permitted. Signage developed by the County must be approved by EVLT and WMSC, which approval shall not be unreasonably withheld. Signage developed and installed by WMSC must be approved by EVLT. Vehicular Access: Parking is permitted on Walking Mountains Lane, but otherwise no parking is allowed on the Property. Users are required to park on Walking Mountains Lane or on the Other WMSC Land and access the Property on foot. Plan Update: This Plan will be discussed annually with EVLT and Eagle County to determine if changes are necessary. Any amendment to the Plan must be approved in writing by WMSC, EVLT and the County. Agreed to this day of December, 2016. Walking Mountains Science Center Eagle Valley Land Trust By: By: Markian Feduschak, Jim Daus, Executive Director Executive Director Eagle County, Colorado By: Jeanne McQueeney, Chair 4 PUBLIC ACCESS EASEMENT Walking Mountains Science Center-Eagle County THIS PUBLIC ACCESS EASEMENT(the"Public Access Easement") is granted this day of December, 2016,by WALKING MOUNTAINS, a Colorado non-profit corporation, d/b/a WALKING MOUNTAINS SCIENCE CENTER,whose address is 318 Walking Mountains Lane, Avon, Colorado 81620 ("Grantor"), to the COUNTY OF EAGLE, COLORADO BY AND THROUGH ITS BOARD OF COUNTY COMMISSIONERS ("Grantee"). RECITALS: 1. Grantor is the record owner of LOT 2B, FINAL PLAT, BUCK CREEK SUBDIVISION, FILING NO. 3, COUNTY OF EAGLE, STATE OF COLORADO, which is depicted in the attached Exhibit A(the"Property"). As part of a single transaction, the Property was encumbered by a Deed of Conservation Easement granted by the Grantor to Eagle Valley Land Trust, a Colorado nonprofit corporation("EVLT")recorded prior to the recording of this Public Access Easement(referred to as the"Conservation Easement"), prior to the recording of this Public Access Easement. The Property is in a relatively natural condition and features montane meadows, aspen forest, and a wooded riparian corridor along an approximately 550-foot reach of Buck Creek. As permitted under the terms and provisions of the Conservation Easement, the Property may be used for passive public recreation and education including public trails. The Property may also be used by Grantor for outdoor education as part of the Walking Mountains Science Center. 2. Grantor desires by this instrument to establish and to grant to Grantee the Public Access Easement for use of the Property in a manner that does not interfere with the Grantor's educational programming. 3. Grantee desires by this instrument(a)to accept said Public Access Easement subject to the restrictions set forth herein, and (b) to assume certain responsibilities in connection therewith. AGREEMENT NOW, THEREFORE, for and in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantor and Grantee agree as follows: 1. Grant of Public Access Easement. Grantor hereby grants, transfers and conveys unto Grantee and its successors and assigns, for the use and benefit of the general public a perpetual, non-exclusive Public Access Easement, subject to the limitations, terms and conditions provided herein. Use of the Property shall be 1 Exhibit E Public Access Easement Page2of8 exclusively non-motorized except as may be required for Property maintenance, emergencies or as otherwise required by law. 2. "As Is" Condition. Grantee hereby accepts the condition of this Public Access Easement in an "as is" condition, subject to the restrictions herein contained, and subject to all patent or latent defects or problems of any kind or nature. Such acceptance does not preclude improvement or maintenance activities within the Property insofar as such activities are allowed or required by this Public Access Easement or the Conservation Easement. 3. Amendment. This Public Access Easement may only be amended by a writing signed by Grantee and by the then-record owners of the Property and recorded in the records of the Eagle County Clerk and Recorder's Office. Any amendment of this Public Access Easement shall be consistent with the terms of the Conservation Easement. 4. Property Use Restrictions under Public Access Easement. (a) Public use of the Property under this Public Access Easement is restricted as follows: i. Public use shall be exclusively for low-impact non-motorized activities such as hiking, picnicking, wildlife watching and photography. ii. The Property will be closed to public use from sunset to sunrise and may be subject to other appropriate closures to public use as agreed upon by the Grantor and Grantee. iii. The public is not permitted to have dogs on the Property. iv. The public is not permitted to have alcoholic beverages on the Property. v. The public is prohibited from having fires or fireworks on the Property. vi. The public is prohibited from the discharge of weapons on the Property. vii. The public is prohibited from hunting on the Property. viii. Grantor, in its discretion, may temporarily restrict the public uses allowed by this Public Access Easement without an amendment to this Access Easement, including limitations on the times and number of visits, if such restrictions are necessary for the protection of educational uses, or ecological resources including, but not limited to, wildlife and vegetation on the Property. Prior to implementation of 2 Public Access Easement Page 3 of 8 additional restrictions, Grantor will provide to Grantee written notice, to include the expected duration and the basis for any such additional restrictions. (b) The parties acknowledge that there is an existing dirt walking trail located on the Property easterly of Buck Creek (the easement for the existing trail was granted to the Town of Avon as described in Phase II Subdivision Improvement Agreement recorded December 30, 2009 as Reception No. 200927823). The Grantee may construct a new trail on the Property in a location approved by Grantor and EVLT under Sections 17 (Grantor's Notice) and 18 (Grantor's Approval) of the Conservation Easement, with such approval not to be unreasonably withheld (the "New Trail"). At such time Grantee determines to exercise the right to construct the New Trail, Grantor agrees to take all actions necessary under the Conservation Easement to provide notice and receive approval. In the discretion of the Grantor, use of the Property by the public or certain uses of the Property may be limited to the trails in the future if necessary for the protection of educational uses, or ecological resources including, but not limited to, wildlife and vegetation on the Property. Prior to limiting public use of the Property to the trails, Grantor will provide to Grantee written notice which shall include the expected duration and the basis for any such limitation. (c) The Grantee shall have the right to erect a kiosk on the Property for the purpose of acknowledging the County's role in protecting the land, subject to the mutual approval of the Grantor and the Grantee of the size and location of, and content of materials posted on, the kiosk. Maps of other properties protected by the County may also be posted as part of the kiosk. (d) The Grantor retains the right to require that any individual or group of individuals leave the Property for reasons of non-compliance with the Conservation Easement or the terms and provisions of this Public Access Easement or if the Grantor determines that the behavior of an individual or a group of individuals is obnoxious or otherwise disruptive to other's enjoyment and use of the Property. (e) New Trail Care and Maintenance. Subject to budget and appropriation authority, Grantee will be responsible for the construction and maintenance of the New Trail, at its sole cost and expense, unless the need for maintenance is caused by Grantor or its invitees, in which case Grantor at its cost shall perform the required maintenance. (f) No Charge for Access. Neither Grantee nor Grantor may charge a fee for access to or use of the Property by the public pursuant to this Public Access Agreement. 5. Enforcement. Grantor and Grantee reserve the right to monitor and enforce diligently all covenants and use restrictions set forth herein and all other applicable rules and regulations. Grantee acknowledges Grantor's expectation that public access granted herein is limited as described herein. 3 Public Access Easement Page 4 of 8 6. No Liability. The parties expressly acknowledge that this Public Access Easement is granted for a "recreational purpose" under C.R.S. Section 33-41-101, et seq., and that Grantor is entitled to the benefits, protections and limitations on liability afforded by Colorado law governing recreational easements, including without limitation said Section 33-41-101, et seq. The parties expressly acknowledge and agree that Grantee is relying on, and does not waive or intend to waive by any provision of this Agreement, the monetary limitations or rights, immunities and protections provided by the Colorado Governmental Immunity Act, as from time to time amended, or otherwise available to Grantee, its affiliated entities, successors or assigns, its elected officials, employees, agents and volunteers. 7. Binding Effect. This Public Access Easement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns forever including all future record owners of the Property, or any part thereof. The benefits and burdens hereof shall also run with the title to the Property and all parts thereof. 8. Third Party Beneficiaries. This Public Access Easement is entered into by and between Grantor and Grantee, and is solely for the benefit of the public and Grantor and Grantee, and does not create any rights or responsibilities, including enforcement rights, in any party or third parties beyond Grantor and Grantee. 10. Notice. Any notice required by this Access Easement shall be deemed properly delivered when (i) personally delivered, or (ii) when mailed in the United States mail, first class postage prepaid, or (iii) when delivered by FedEx or other comparable courier service, charges prepaid, to the parties at their respective addresses listed below, or (iv) when sent via facsimile so long as the sending party can provide facsimile machine or other confirmation showing the date, time and receiving facsimile number for the transmission, or (v) when transmitted via e-mail with confirmation of receipt. Either party may change its address for purposes of this paragraph by giving five (5) days prior written notice of such change to the other party. GRANTOR: Walking Mountains Science Center 318 Walking Mountains Lane Avon, Colorado 81620 Telephone: Facsimile: E-mail: GRANTEE: Eagle County, Colorado Attention: Open Space 500 Broadway Post Office Box 850 4 Public Access Easement Page 5 of 8 Eagle, CO 81631 Facsimile: 970-328-85 E-mail: toby.sprunk @eaglecounty.us With a copy to: Eagle County Attorney 500 Broadway Post Office Box 850 Eagle, Co 81631 Telephone: 970-38-8685 Facsimile: 970-328-8699 E-Mail: atty @eaglecounty.us 11. Annual Appropriations. All financial obligations set forth in this Agreement are subject to annual appropriation pursuant to C.R.S. § 29-1-110, as amended. 12. Assignment. Neither Grantor nor Grantee may assign any of its rights and obligations under this Agreement to any other person or entity without the prior written permission of the other. 13. Warranty of Title. Grantor represents that it is the record owner of the Property that it has full power and authority to execute this Agreement. 14. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid under applicable law; provided, however, if any provision of this Agreement shall be invalid or prohibited under applicable law, such provision shall be ineffective to the extent of such invalidity or prohibition without invalidating the remaining provisions of this Agreement. 15. Recording. Upon execution by the parties, this Agreement shall be recorded in the records of the Eagle County Clerk and Recorder's Office. 16. Governing Law and Venue. It is the intention of the Parties hereto that all questions with respect to the construction and interpretation of this Agreement and the rights and liabilities of the Parties hereunder shall be determined in accordance with the laws of the State of Colorado. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the day and year first above written. [Rest of page intentionally left blank] 5 Public Access Easement Page 6 of 8 GRANTOR: WALKING MOUNTAINS, a Colorado non-profit corporation, d/b/a WALKING MOUNTAINS SCIENCE CENTER By: (sign name) (print name) Its: (title) STATE OF COLORADO ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of 2016,by as of Walking Mountains, a Colorado non-profit corporation, d/b/a Walking Mountains Science Center. Witness my hand and official seal. My commission expires: Notary Public GRANTEE: COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONERS By: Jeanne McQueeney, Chair Attest: By: Regina O'Brien, Clerk to the Board 6 Public Access Easement Page 7 of 8 EXHIBIT A MAP OF PROPERTY ii IIT',, tib I , , t 1 N. ,. . , , ttt i! Ai k A A vil . ,\ E-0001.,§ 14 '. , 4c4S-6 ' kt 01, k tE .. 54 ry , \ \ . tRil , A 4 V tv tt k 110 it li t 'k- V, ktA„ All 1 k‘V Ith 110 11* s', V , 7 EXHIBIT I After recording,please return to: Eagle County Attn: Toby Sprunk,Director of Open Space P.O.Box 850 Eagle,Colorado 81631 Any time the Property is transferred by Grantor to any third party, Grantor shall pay a transfer fee of$500 to Grantee and notify Grantee pursuant to the requirements of Section 11 of this Deed. DEED OF CONSERVATION EASEMENT Avon Northside Parcels THIS DEED OF CONSERVATION EASEMENT ("Deed") is granted on this day of December, 2016,by the TOWN OF AVON, a Colorado municipal corporation, a/k/a Town of Avon, Colorado ("Grantor"), the address of which is One Lake Street, P.O. Box 975, Avon, Colorado 81620, to EAGLE COUNTY, COLORADO, a body corporate and politic ("Grantee"), the address of which is P.O. Box 850, Eagle, Colorado 81631. (Grantor and Grantee are individually referred to herein as a"Party", and are collectively referred to herein as the "Parties"). The following exhibits are attached hereto and are incorporated by reference: Exhibit A: Description of the encumbered portion of Tract B Exhibit B: Description of Tract C Exhibit C: Map of the encumbered portion of Tract B Exhibit D: Map of Tract C Exhibit E: Baseline Documentation Report Exhibit F: Sample Notice of Transfer of Property RECITALS: A. Description of Property. Grantor is the sole owner in fee simple of approximately 97.3 acres of real property located in Eagle County, Colorado, more particularly described in Exhibit A and Exhibit B and depicted in Exhibit C and Exhibit D, all of which are attached hereto and made a part hereof(the "Property"). The Property is comprised of a 72.7 acres, more or less, of the northerly parcel known as Tract B and the 24.64 acre, more or less, southeasterly parcel known as Tract C, as shown on Exhibits C and D. B. Conservation Purposes. The conservation purposes of a qualified conservation easement must include one or more of the following: (1) to preserve land for outdoor recreation by or education of the general public; (2) to protect relatively natural habitat of fish, wildlife or plants; (3) to preserve open space; and (4) to preserve historically important land or structures. The conservation purposes set forth in this Recital B and referred to hereafter in this Deed are collectively referred to as the "Conservation Values." Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 1 of 30 The Conservation Values of the Property are as follows: 1. Public Recreation or Education. The Property is intended to be used for passive public recreation and education including, but not limited to, public trails. There are no formal trails on the Property as of the Effective Date (defined below) , althoughthere are some social trails; future trails on the Property will connect with an extensive trail system on adjoining public lands, enhancing trail system accessibility and connectivity for the public. 2. Relatively Natural Habitat. The Property supports native sagebrush shrublands, mixed conifer forest, small areas of aspen and cottonwood stands, and riparian areas that provide forage, cover,breeding habitat, and migration corridors for a variety of wildlife species, including migratory songbirds, raptors, small mammals, and big game. The Property's habitat is significant because it provides or potentially provides habitat for species considered rare, threatened, endangered, or of special concern— namely bald eagle (a State of Colorado Species of Concern). The Property lies within bald eagle winter foraging range. The Property also provides: (i) overall range for elk, including winter concentration, and summer, winter and severe winter range, (ii) overall range, winter range and migration corridor concentration areas for mule deer, (iii) overall range for black bear, and (iv) overall range for mountain lion. These big game species contribute significantly to the biodiversity of the region and to the economy of Eagle County and the State of Colorado. 3. Open Space. The Property qualifies as open space because it is being preserved for the scenic enjoyment of the general public and pursuant to clearly delineated federal, state, and local governmental conservation policies, and will yield a significant public benefit. a. Scenic Enjoyment. The Property's preservation will provide scenic enjoyment to the general public because the Property is in an undeveloped and natural condition, featuring a mosaic of natural vegetation communities across dramatic topography. The Property adjoins private owned lands or roads on all sides. The east parcel adjoins the pending Walking Mountains conservation easement along Buck Creek, and both parcels adjoin the Mountain Star conservation easement held by the Town of Avon (Figures 2 and 4 of the Baseline Documentation Report). All other adjacent lands are in residential duplex or light industrial or commercial zones or zoned for planned unit development or planned unit development open space. The Property provides open space near the Town of Avon. On a landscape scale, the position of the conservation easement will protect the scenic value and natural, open character of lands around the Town of Avon in the Eagle Valley. The Property is visually accessible to the public from Interstate Highway 70, Nottingham Road, Buck Creek Road, and various trails which are open to and actively utilized by residents of the Town of Avon, Eagle County and the state of Colorado. Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 2 of 30 b. Clearly Delineated Government Conservation Policy. Protection of the Property furthers the specific objectives of those clearly delineated government conservation policies set forth in Recitals D and E below. c. Significant Public Benefit. There is a foreseeable trend of urbanization and rural subdivision development in the vicinity of the Property and the surrounding areas within the Town of Avon and Eagle County. There is a strong likelihood that development of the Property would lead to or contribute to degradation of the scenic and natural character of the area. Preservation of the Property will continue to provide an opportunity for the general public to appreciate its scenic values. These Conservation Values are of great importance to Grantor, Grantee, the residents of Eagle County, and the residents of the state of Colorado. It should also be noted that the terms of the Easement (defined below) do not permit a degree of intrusion or future development that would interfere with the essential scenic quality of the Property. D. State Policy Concerning Conservation Easements. 1. C.R.S. § 33-1-101 provides in relevant part that "it is the policy of the state of Colorado that the wildlife and their environment are to be protected, preserved, enhanced, and managed for the use,benefit, and enjoyment of the people of this state and its visitors." 2. C.R.S. § 33-10-101 provides "It is the policy of the state of Colorado that the natural, scenic, scientific, and outdoor recreation areas of this state are to be protected, preserved, enhanced, and managed for the use,benefit, and enjoyment of the people of this state and visitors of this state." 3. C.R.S. § 38-30.5-102 provides for the creation of conservation easements to maintain land "in a natural, scenic, or open condition, or for wildlife habitat, or for agricultural, horticultural, wetlands, recreational, forest or other use or condition consistent with the protection of open land, environmental quality or life sustaining ecological diversity . . ." 4. The Colorado Department of Transportation statutes (C.R.S. § 43-1-401, et seq.) provide that the "preservation and enhancement of the natural and scenic beauty of this state" are of substantial state interest. E. Other Supporting Government Policy. 1. Eagle County Resolution No. 02-123 provides for the creation of an open space mill levy for the purpose of acquiring, maintaining, or permanently preserving open space to preserve wildlife habitat, protect working farms and ranches, conserve scenic Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 3 of 30 landscapes and vistas, protect wetlands and floodplains, or provide public access points to rivers and streams. 2. Eagle County Resolution No. 16-064 establishes that certain characteristics and/or traits make a property worthy of protection through the Open Space Program, such as and not by way of limitation, fish and wildlife habitat or migration routes; working farms and ranches; scenic landscapes and vistas; wetlands, floodplains or other riparian habitat; public access to rivers and streams or lands open to the public; dispersed recreation; geographic or topographic formations; rare or significant flora or fauna; cultural historic values; or other natural, open space or conservation values. 3. The Eagle County Comprehensive Plan states that: "Eagle County is a place where natural ecosystems are preserved and maintained in order to assure the health and wellbeing of local wildlife populations." 4. The Eagle County Comprehensive Plan states that: "The integrity, quality and interconnected nature of critical wildlife habitat in Eagle County should be preserved." 5. The Eagle County Comprehensive Plan states that: "A variety of approaches should be utilized to preserve land as open space" including conservation easements. 6. The Town of Avon Comprehensive Plan states in Goal I.1 that it is a goal of the Plan to "provide an exceptional system of parks, trails, and recreational programs to serve the year round leisure needs of area residents and visitors." F. Baseline Documentation Report. In order to document the condition of the Property as of the Effective Date, a report has been prepared by Rare Earth Science, LLC and dated December 5, 2016 (the "Baseline Report"). The Baseline Report contains a natural resources inventory and also documents the Conservation Values and the characteristics, current use, and status of improvements on and development of the Property. The Baseline Report is acknowledged by Grantor and Grantee as an accurate representation of the Property at the time of the transfer. The Baseline Report has been provided to both Parties, is attached as an exhibit and incorporated herein by this reference, and may be used by Grantee to assure that any future changes in the use of the Property will be consistent with the terms of this Easement. However, the Baseline Report is not intended to preclude the use of other evidence to establish the condition of the Property as of the Effective Date. G. Eagle County Open Space. Transaction costs associated with the grant of this Easement were funded by the Eagle County Open Space Program (the "County"). NOW, THEREFORE, in consideration of the recitals set forth above, incorporated herein by reference, and the mutual covenants, terms, conditions, and restrictions contained herein, and pursuant to the laws of the State of Colorado, Grantor voluntarily grants Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 4 of 30 and conveys to Grantee and Grantee voluntarily accepts, a perpetual conservation easement in gross ("Easement"), an immediately vested interest in real property defined by C.R.S. §§ 38- 30.5-101, et seq., and of the nature and character described in this Deed, for the purpose of preserving and protecting the Conservation Values in perpetuity, subject to, and without affecting, any currently-existing rights, if any, of third parties or the United States, encumbering the Property, under Federal law, Colorado statutory law or common law ("Third-Party Rights"). 1. Purpose. The purpose of this Easement is to ensure that Grantor preserve and protect in perpetuity the Conservation Values as they exist upon the Effective Date (defined below) and as they may evolve in the future, in accordance with C.R.S. § 38-30.5-101, et seq. ("Purpose"). To effectuate the Purpose of this Easement, the Parties agree to permit acts on and uses of the Property that are consistent with the Purpose and not expressly prohibited by this Deed and to restrict or prohibit acts on and uses of the Property that are not consistent with the Purpose. In this Deed, "consistent with the Purpose" shall mean acts on and uses of the Property that have a positive impact, neutral impact, or no impact on the Conservation Values as determined by Grantee in its reasonable discretion in accordance with the terms of this Deed. This Deed sets forth certain uses and activities that are expressly permitted and consistent with the Purpose, but subject to specified qualifications, conditions, and requirements of, and procedures for, prior notice to or approval of Grantee. Nothing in this Easement is intended to compel a specific use of the Property other than the preservation and protection of the Conservation Values. 2. Rights of Grantee. To accomplish the Purpose of this Easement, this Deed conveys the following rights to Grantee: A. To preserve and protect the Conservation Values in perpetuity, subject to and limited by Grantor's reserved rights; B. To enter upon the Property at reasonable times to monitor Grantor's compliance with and otherwise enforce the terms of this Easement; provided that, prior to such entry, Grantee shall first provide at least seven (7) days notice to Grantor, and Grantee shall not unreasonably interfere with Grantor's use and quiet enjoyment of the Property; C. To prevent any activity on or use of the Property that is inconsistent with the Purpose or the express terms of this Easement and, except as limited by Section 8, Grantee may require the restoration of such areas or features of the Property that are damaged by an inconsistent activity or use; D. To enforce the terms and provisions of this Easement; E. To place signs on the Property that identify the land as being protected by this Easement paid for through the use of Eagle County Open Space dollars, provided Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 5 of 30 that the size, number, and location of such signs are subject to Grantor's reasonable approval; and F. All Development Rights as defined in Section 25 (Development Rights), except as specifically reserved by Grantor herein. Grantor does not have the right to use or transfer any Development Rights conveyed to Grantee by this Deed. Nothing in this Section shall preclude the right of Grantee to enforce the preservation and protection of the Conservation Values or any other provisions of this Easement. 3. Rights Retained and Reserved by Grantor. Grantor retains the right to perform any act on or use of the Property that is not prohibited or restricted by this Deed provided such acts or uses are consistent with the Purpose. 4. No Management Plan. The Parties agree that no management plan is required for the Property under this Deed. 5. Property Improvements. Improvements, as documented in the Baseline Report as existing as of the Effective Date may be maintained, repaired and replaced in their current location. The installation, placement or construction of any other improvement is prohibited unless expressly permitted by this Section 5. A. Improvements. Grantor shall have the right to construct new improvements ("Improvements") on the Property only to the extent described herein, provided that any surface area disturbed by activity related to Improvements shall be restored and revegetated by the end of two full growing seasons after completion of such activity. For the purposes of this sub-section A, "construct" shall include placement, installation, maintenance, repair and replacement of Improvements. i. Passive Recreation Improvements. Without further notice to or approval by Grantee, Grantor may construct the following new improvements: (a) interpretive and directional signage; (b) wildlife resistant trash collection containers; (c) picnic tables; (d)benches and seating; (e) trail head parking no larger than one acre; (f) trail head restroom or sanitation facilities no larger than 500 square feet; and (g) landscaping. With prior written approval of Grantee pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's Approval), Grantor may construct trail head parking larger than one and one half acres, restroom facilities larger than 1,200 square feet and/or appurtenant improvements to the passive recreation improvements. ii. Roads. For purposes of this Section, "Roads" shall mean any existing or new permanent road that is graded, improved or maintained, including any seasonal unimproved roads and two-track roads. Grantor may only construct Roads as may be reasonably necessary for the purpose of: (a) utility construction and maintenance; (b) drainage improvement construction and maintenance; (c) Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 6 of 30 slope stabilization work; (d) landscaping; and, (e) revegetation. Grantor shall not pave or otherwise surface any Road with impervious surfaces except to the limited extent needed for erosion control. The alignment, width and design of any Roads shall minimize surface disturbance and minimize any potential erosion. Prior to construction of any new Road, Grantor agrees to provide at least 30 days written notice to Grantee. iii. Trails. For the purposes of this Section "Trails" shall mean any unimproved or improved path, or unpaved trail constructed or established by human use,but shall not include trails established by wildlife or livestock. Grantor may maintain existing social trails and construct up to two miles of unpaved Trails on the Property, upon notice to, but without further approval of Grantee. Grantor may construct, maintain and establish additional trails (in excess of two miles) with the prior written approval of Grantee, which approval shall not be unreasonably withheld, pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's Approval). The surface of the Trails shall be dirt, gravel, rock, or other natural surface, the width of any Trail tread shall not exceed three (3) feet, and the Trails may include railings and steps. Permitted uses of the trails include hiking, running, mountain biking, cross-country skiing, snowshoeing, equestrian, birdwatching and wildlife viewing, flora viewing, and other passive recreational and educational uses. Grantor may not permit motorized use of the Trails by the public. Grantor reserves the right to make improvements to the Trails and allow use of the Trails as may be required under the law to comply with 42 U.S.C. §§12101 et seq. Maintenance if the Trails shall be the responsibility of Grantor, at Grantor's discretion, sole cost and expense. iv. Fences. Grantor may maintain, repair and replace existing fences and construct new fences anywhere on the Property, provided that any new fences shall be designed and constructed to conform to the then-existing wildlife-friendly fencing guidance from Colorado Parks and Wildlife (or its successor agency). To the extent that no such guidance exists, such fences shall be designed to minimize, to the extent practicable, impacts on wildlife and to adequately exclude livestock where livestock are present on land adjacent to the Property. v. Utility Improvements. Existing energy generation or transmission infrastructure and other existing utility improvements, if any, including but not limited to: (i) electric power poles, transformers, and lines; and (ii) telephone and communications towers, poles, and lines("Utility Improvements"), may be repaired,or replaced with an improvement of similar size and type at their current locations on the Property and may be further developed or reasonably expanded in accordance with Section 5.B or as deemed necessary by the utility provider for emerging technologies that do not negatively impact the Conservation Values without further permission from Grantee. Grantor shall not otherwise enlarge or construct any new Utility Improvements, including natural gas pipelines or renewable energy generation systems, including by not limited to, wind, solar, Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 7 of 30 geothermal or hydroelectric unless consistent with the Purpose and approved in writing by Grantee pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's Approval). Prior to the enlargement or construction on the Property of any permitted Utility Improvements permitted under Section 5B , Grantor shall provide at least 30 days written notice of such construction to Grantee. Following the repair, replacement, or construction of any Utility Improvements, Grantor shall promptly restore any disturbed area to a condition consistent with the Purpose. Any easement, right of way or other interest granted to a third party or otherwise reserved, to be used for Utility Improvements is subject to Section 7.F (Easements, Rights of Way or Other Interests). vi. Underground Utility Improvements. Grantor may construct new or expanded underground public utility improvements, including reasonable and customary appurtenant surface improvements not exceeding 500 square feet, ("Underground Utility Improvements") provided that prior to the enlargement or construction of new Underground Utility Improvements, Grantor shall give notice to Grantee in accordance with Section 17 (Grantor's Notice) and Grantor shall receive and consider comments from Grantee to ensure the construction or expansion of such Underground Utility Improvements is accomplished in a manner that does not negatively impact Conservation Values. Such notice shall include complete plans for any Underground Utility Improvements construction and a plan for restoration of any portion of the Property disturbed by such construction. Following the construction, expansion or repair of any Underground Utility Improvements, Grantor shall promptly restore any disturbed area to a condition consistent with the Purpose. Any easement, right of way or other interest granted to a third party or otherwise reserved, to be used for Utility Improvements is subject to Section 7.F (Easements, Rights of Way or Other Interests). vii. Drainage Improvements. Grantor may construct new or expanded drainage and flood control improvements, including but not limited to grading, impoundments, and control structures. Prior to construction of any new or expended drainage or flood control improvements, Grantor shall give Grantee at least 30 days written notice, unless such improvements are intended to respond to or prevent damage after occurrence identified in Section 35,in which case no notice is required. viii. Retaining Walls. Grantor may construct retaining walls for the purpose of slope stabilization, erosion control, and/or support of any Improvements permitted in this Sub-Section A. Prior to construction of any new retaining walls, Grantor shall give Grantee at least 30 days written notice, unless such improvements are intended to respond to or prevent damage after occurrence identified in Section 35, in which case no notice is required. Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 8 of 30 ix. Signs. Grantor may place and maintain interpretive and directional signs, provided that such signs do not exceed eight (8) square feet. Grantor may place larger signs on the Property with Grantee's approval pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's Approval). x. Existing and New Water Features. The maintenance and repair of existing non-domestic water improvements such as ponds, reservoirs, irrigation ditches, pipes, headgates, flumes,pumps, or wells, if any, is permitted. The construction of new water improvements or enlargement of existing water improvements is permitted upon Grantee's approval pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's Approval). Any portion of the Property that is disturbed by the maintenance, repair, construction or enlargement of water improvements shall be restored to a condition that is consistent with the Purpose promptly after said activity is completed. B. Matters of Record. Grantor and/or the beneficiary or grantee of any easements, rights-of-way, or other instruments of record ("Matters of Record") recorded as of the date and time this Deed is recorded shall have all rights stated in any such easement to construct, install, place, relocate, maintain, repair, replace, or expand such utilities and improvements to the extent set forth in such easement. This Deed shall neither operate nor be construed to affect, expand, diminish or restrict the rights of any parties or beneficiaries of any Matters of Record recorded as of the date and time of the recording of this Deed. 6. Resource Management. Grantor recognizes the importance of good resource management and stewardship to preserve and protect the Conservation Values. To this end, Grantor shall conduct the following uses of the Property in accordance with the provisions below and in a manner that is consistent with the Purpose. If Grantee believes any resource management practice(s) are not consistent with the Purpose, Grantee, in addition to all of its rights under this Deed, shall notify Grantor in writing and allow Grantor 30 days to respond. If Grantor and Grantee are unable to reach an agreement concerning Grantor's resource management practice(s), Grantee may request that the Parties consult with a mutually agreed upon resource management professional with a mutually agreed upon fee for services. This professional will provide written recommendations for said resource management practice(s) and Grantor shall follow the resource management professional's reasonable recommendations, only after Grantor and Grantee have jointly determined that said recommendations are consistent with the Purpose. Grantor shall pay the costs for such consultation, including any fees for the resource management professional. A. Motor Vehicles. Grantor, and any other entity or person Grantor authorizes, may use motorized vehicles, including without limitation all-terrain vehicles 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, maintenance, and replacement of the improvements permitted by this Easement or for property management purposes including,but not limited to, maintenance of the Trails, weed Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 9 of 30 control, habitat restoration and improvement. Notwithstanding the foregoing, Grantor shall have the right to permit motorized access on the Trails in order to comply with 42 U.S.C. §§ 12101 et seq. Any portion of the Property disturbed due to the use of motor vehicles shall be restored to a condition as close to its original condition as reasonably practicable. B. Timber. Grantor may cut trees to control insects and disease, to control invasive species, to prevent personal injury and property damage, and for fire mitigation purposes including limited and localized tree and vegetation thinning and the creation of defensible space for permitted improvements. Grantor may also cut dead trees for habitat improvement and the construction of permitted Improvements and fences on the Property. Any fire mitigation activities shall be conducted in substantial accordance with a forest management plan prepared by a professional forester at Grantor's sole cost and expense, which plan shall be reviewed by Grantee (at Grantee's sole cost and expense), and shall not be effective unless and until approved by Grantee pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's Approval). C. Relatively Natural Habitat. Grantor may conduct any activities to create, maintain, restore, or enhance wildlife habitat and native biological communities on the Property, provided that such activities are consistent with the Purpose without Grantee's approval. If such activities could be inconsistent with the Purpose, , Grantor must first notify Grantee and obtain Grantee's consent pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's Approval). D. Minerals and Other Deposits. As of the Effective Date, Grantor owns all of the coal, oil, gas, hydrocarbons, and other minerals (the "Minerals") located on, under, or in the Property or otherwise associated with the Property. This Easement expressly prohibits the mining or extraction of Minerals using any surface mining method. So long as such activity is consistent with the Purpose, Grantor may, with Notice and Approval of Grantee under Section 17 and Seciton 18,permit subsurface access to Minerals from locations off the Property, provided that Grantor shall not permit such subsurface access to disturb the subjacent and lateral support of the Property. E. Recreation and Education. Grantor may undertake, or permit members of the public to undertake passive, non-motorized recreation on the Property, provided such activities are consistent with the Purpose and the restrictions provided herein. Notwithstanding the foregoing, Grantor may allow motorized access in the manner otherwise permitted in Section 6. F. Water Rights. No water rights are encumbered by this Easement. G. Special Events. Grantor also reserves the right to conduct special events on the Property, provided such special events are consistent with the Purpose, and the scale, scope and duration of the special event is not expected to cause impact to the Conservation Values. Grantor must conduct such special events in a manner that Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 10 of 30 minimizes damage to the Conservation Values and promptly and diligently re-vegetates any disturbed areas with native seed and/or vegetation. Events with expected attendance of more than 500 people and/or with an expected duration of more than 24 hours require approval by Grantee pursuant to Section 17 (Grantor's Notice) and Section 18 (Grantee's Approval). H. Public Access. Nothing contained herein shall be construed as affording the public access to any portion of the Property. The Parties acknowledge that Grantor reserves the right to permit public access to the Property consistent with the Purpose, for use by the public for purposes permitted by this Deed. I. Weed Control. The Parties recognize the potential negative impact of noxious weeds and invasive plant species on the Conservation Values. Grantor shall manage noxious weeds and invasive plant species in a manner consistent with the Purpose. Grantee has no responsibility for the management of noxious weeds and invasive plant species. J. Wildfire. In the event of a wildfire, any and all methods of extinguishing the fire are permissible. Also, in the event of a wildfire, the Property is available for staging of fire activities and camping for firefighters depending on the severity of an event. 7. Restricted Practices. A. Subdivision. Grantor and Grantee agree that the division, subdivision or de facto subdivision of the entire Property (which includes the non-contiguous northerly and southeasterly tracts), whether by legal or physical process, into two or more parcels of land or partial or separate interests (including,but not limited to, condominium interests or the partition of undivided interests) is prohibited. At all times Grantor shall own and convey the Property as a single parcel which shall be subject to the terms and conditions of this Easement, regardless of whether the Property now consists of separate parcels, was acquired as separate parcels, or is treated as separate parcels for property tax or other purposes. Grantor may own the single parcel by joint tenancy or tenancy in common, consistent with Section 28 (Joint and Several Liability) and 29 (Ownership by Single Entity Consisting of Multiple Parties); provided, however, that Grantor shall not undertake any legal proceeding to partition, subdivide or divide in any manner such undivided interests in the single parcel. B. Surface Disturbance. Any alteration of the surface of the land, including without limitation, the movement, excavation, extraction or removal of soil, sand, gravel, rock, peat or sod, is prohibited, unless such alteration is associated with permitted acts on and uses of the Property. Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 11 of 30 C. Commercial or Industrial Activity. Grantor shall not conduct or allow industrial uses on the Property. Grantor shall not conduct or allow commercial uses of the Property that are inconsistent with the Purpose. D. Trash. Grantor may not dump or accumulate any kind of trash, sludge, or refuse on the Property, except for trash contained within wildlife resistant trash containers. E. Hazardous Materials. Grantor may use agri-chemicals on the Property in accordance with all applicable federal, state or local laws. For purposes of this Easement, "Hazardous Materials" shall mean any"hazardous substance" as defined in §9601(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA"), "pollutant or contaminant" as defined in § 9601(33) of CERCLA, or any hazardous waste as defined in C.R.S. §25-15-101(6). 40 C.F.R. § 302.4 provides a non-exhaustive list of over 600 substances that qualify as hazardous substances under CERCLA. The use, treatment, storage, disposal, or release of Hazardous Materials and/or agri-chemicals shall only be permitted in accordance with applicable, federal, state and local law and regulations. Without limiting the foregoing, nothing in this Easement shall be construed as giving rise to any right or ability in Grantee, nor shall Grantee, have any right or ability, to exercise physical or managerial control over the day-to-day operations of the Property, or otherwise to become an operator with respect to the Property within the meaning of CERCLA, as amended. F. Easements, Rights of Way or Other Interests. Prior to the conveyance or modification of an easement,right of way or other similar interest for Undergound Utility Improvments allowed under Section 5A(vi) of this Deed, Grantor shall provide notice to Grantee pursuant to Sections 17 (Grantor's Notice) and Grantor shall receive and consider comments from Grantee. The conveyance or modification of an easement, right of way or other similar interest that is not for an Underground Utility Improvement is prohibited unless Grantee determines that the proposed conveyance or modification is consistent with the Purpose,pursuant to Sections 17 (Grantor's Notice) and 18 (Grantee's Approval). G. Other Restricted Uses. Grantor shall not use the Property for the construction or operation of developed recreational facilities such as golf courses, athletic fields, motorized vehicle tracks, equestrian facilities or other non-dispersed types of recreation, nor may the Property be used for sod farms, helicopter pads, and airstrips. Grantor shall not allow the Property to be used for hunting or the discharge of weapons by the public. H. Telecommunications Facilities. Except as allowed under Section 5B, Grantor shall not erect, construct, install,relocate, or use a communication facility, telecommunication facility, network element, telecommunication equipment, or any other equipment or material that may be used for telecommunications or to provide telecommunication services (as such terms are defined in The Federal Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 12 of 30 Telecommunications Act of 1996, as may be amended) unless Grantee determines that the proposed facility is consistent with the Purpose pursuant to Sections 17 (Grantor Notice) and 18 (Grantee's Approval) of this Deed.). 8. Responsibilities of Grantor and Grantee Not Affected. Other than as specified herein, this Easement is not intended to impose any legal or other responsibility on Grantee, or in any way to affect any existing obligations of Grantor as owner of the Property. Additionally, unless otherwise specified below, nothing in this Easement 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. Grantor shall continue to be solely responsible and Grantee shall have no obligation for the upkeep and maintenance of the Property and Grantor understands that nothing in this Easement relieves Grantor of any obligation or restriction on the use of the Property imposed by law. Among other things, this shall apply to: A. Taxes. Grantor is a tax-exempt entity. However, if Grantor or the Property ever becomes subject to real or personal property taxes or assessments levied against the Property, Grantor shall continue to be solely responsible for payment of all taxes and assessments levied against the Property. If Grantee is ever required to pay any taxes or assessments on its interest in the Property, Grantor will reimburse Grantee for the same. If for any reason Grantor fails to pay any taxes, assessments or similar requisite charges, Grantee may pay such taxes, assessments or similar requisite charges, and may bring an action against Grantor to recover all such taxes, assessments and similar charges plus interest thereon at the rate charged delinquent property taxes by the county assessor's office in which the Property is located. B. No Liability. Grantee shall not be liable for injury or damages occurring on, or arising from, the Property unless due solely to the gross negligence or intentional acts of the Grantee. Liability of Grantor, if any, shall not exceed an amount equal to any limits set forth in the Colorado Governmental Immunity Act now existing or as may hereafter be amended, nor confer any rights or benefits on any person or activity not a party to this Agreement. Grantor does not waive or intend to waive the limitations on liability which are provided to it under the Colorado Governmental Immunity Act, C.R.S. § 24-10-101 et seq. Grantor agrees to obtain and maintain at all times, commercial general liability insurance consistent with the limits set forth in the Governmental Immunity Act, naming Grantee as an additional insured. Grantor shall provide proof of such insurance at any time requested by Grantee. Nothing herein shall create liability for the Grantee as a result of their contributions to the Property and this Easement. 9. Enforcement. A. General Provisions. Grantee shall have the right to prevent and correct or require correction of violations of the terms of this Deed. If Grantee determines that immediate entry is required to inspect for, prevent, terminate, or mitigate a violation of the terms of this Deed, Grantee may enter the Property without advance notice. If such entry occurs, Grantee shall notify Grantor within a reasonable time thereafter. If Grantee Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 13 of 30 determines that a violation has occurred, Grantee shall notify Grantor, of the nature of the alleged violation in writing. Upon receipt of said notice, Grantor shall immediately cease the alleged violation and within thirty(30) days either(i) if necessary, provide a written plan for restoration and remediation of the Property and, once approved by Grantee, restore or remediate the Property in accordance with the plan; or(ii) provide written documentation demonstrating that the activity is permitted and is not a violation. Grantee's acceptance of Grantor's actions under (i) or(ii) above shall be in Grantee's sole discretion, and shall be confirmed by Grantee in writing. If Grantor is unable or unwilling to immediately cease the alleged violation, and comply with(i) or(ii) above, the Parties agree to resolve the dispute through mediation as set in forth in Section 32 or judicial process. At any point in time, Grantee may take appropriate legal action, including seeking an injunction, to stop the alleged violation. B. Costs of Enforcement. Any costs incurred by Grantee in enforcing the terms of this Deed against Grantor, including, without limitation, costs and expenses of suit, and reasonable staff time and attorneys' fees necessitated by Grantor's violation of the terms of this Deed, shall be borne by Grantor. If the deciding body determines that Grantor is the prevailing party on all claims in any court action to enforce the terms of this Deed, the Parties shall each be responsible for their own costs and attorney fees. The foregoing two sentences are subject to the following: i. Any costs of restoration necessitated by Grantor's violation of the terms of this Deed, shall be borne by Grantor. ii. If an action is brought to enforce the final decision of the mediator that was agreed to by the Parties, then the prevailing Party shall be entitled to payment from the non-prevailing Party of its costs incurred in enforcing the terms of the final decision, including, without limitation, its costs and expenses of suit, and attorneys' fees. C. Grantee's Discretion. Grantee's remedies described in this Section 9 shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity, including the right to recover any damages for loss of Conservation Values as described in C.R.S. § 38-30.5-108. The failure of Grantee to discover a violation or to take action shall not waive any of Grantee's rights, claims or interests in pursuing any such action at a later date. 10. Transfer of Easement. A. Grantee may request consent and approval of Grantor to transfer this Easement to any public agency or private non-profit organization that, at the time of transfer: (i) is a "qualified organization" under I.R.C. § 170(h); (ii) is authorized to hold conservation easements under C.R.S. §§38-30.5-101, et seq. and C.R.S. §12-61-720, and(iii) expressly agrees in writing to abide by the terms of this Easement and to assume the responsibility Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 14 of 30 imposed on Grantee by this Easement. Any transfer of this Easement by Grantee shall be subject to Grantor's prior consent and written approval, which consent and approval shall not be unreasonably withheld. Grantee shall provide Grantor with a written request to assign this Easement at least one hundred eighty days (180) days prior to the date proposed for the assignment transaction. B. If Grantee ever ceases to exist or no longer qualifies under state law to hold conservation easement interests, or if Grantee desires to transfer this Deed to a qualified organization having similar purposes as Grantee,but Grantor has refused to approve the transfer, a court with jurisdiction shall transfer this Deed to another qualified organization having similar purposes and that agrees to abide by the terms of this Easement and to assume the responsibility imposed on Grantee by this Easement, provided that Grantor shall have adequate notice of and an opportunity to participate in the court proceeding leading to the court's decision on the matter. C. Upon compliance with the applicable portions of this Section 10, the Parties shall record an instrument completing the assignment in the Eagle County Clerk and Recorder's Office. Assignment of this Easement shall not be construed as affecting this Easement's perpetual duration and shall not affect this Easement's priority against any intervening liens, mortgages, easements, or other encumbrances. 11. Transfer of Property. Any time the Property or a portion thereof is transferred by Grantor to any third party, Grantor shall pay a transfer fee of$500.00 to Grantee to be used for purposes consistent with Grantee's mission. 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 Property, including, without limitation, a leasehold interest. Grantor shall notify Grantee in writing within fifteen (15) business days after the transfer of the Property, using the form in Exhibit C attached hereto and shall provide Grantee with a copy of the new ownership deed. Grantee reserves the right to record a notice of transfer fee in the official real property records of Eagle County, Colorado. This provision is intended to run with the land for perpetuity, and to touch and concern the Property burdened by this easement by providing Grantee a contribution toward its stewardship, enforcement and defense of this Easement. If a fee is attributable to a transfer of property classified as "residential real property," as defined in C.R.S. § 38-35-127(2)(e), then the Grantee covenants and agrees that the fee shall be used for the purposes specified in C.R.S. § 38-35-127(2)(b)(V) in a manner consistent with the Grantee's mission. 12. Condemnation. Grantor shall notify Grantee immediately of any communication or notice received concerning any proposed taking or condemnation affecting the Property, and Grantee shall have the right,but not the obligation, to participate in any proceedings. Grantee may pursue any remedies in law or in equity, including opposition to the condemnation of the Property. If the Property or any part thereof or interest therein is sold or conveyed to a condemning authority under threat of condemnation or taken through condemnation or other involuntary conversion, Grantee shall be entitled to compensation determined as provided in Section 14. Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 15 of 30 13. Termination or Extinguishment of Easement. Except as provided in Section 12 (Condemnation), this Easement or any part hereof may only be terminated or extinguished by judicial proceedings in a court of competent jurisdiction. The only ground upon which this Easement can be terminated or extinguished is the total loss of all Conservation Values. If termination or extinguishment occurs, Grantee shall not be entitled to compensation.. 14. Compensation upon Condemnation. A. The Parties acknowledge the fair market value of the Easement is seventy- five percent(75%) of the full fair market value of the Property unrestricted by this Easement ("Proportionate Value Percentage"), which percentage shall remain constant and shall be applied pursuant to Treas. Reg. § 1.170A-14(g)(6)(ii). B. If the Property is condemned, in whole or in part, as discussed in Section 12, Grantee shall be entitled to a share of the proceeds of such action at least equal to the Proportionate Value Percentage of the full fair market value of the Property unrestricted by this Easement pursuant to Treas. Reg. § 1.170A-14(g)(6)(ii), excluding the value of any improvements. Grantor shall not voluntarily accept proceeds equal to less than full fair market value of the affected Property unrestricted by this Easement without the approval of Grantee. C. Grantee's use of its share of such proceeds shall comply with Treas. Reg. § 1.170A-14(g)(6). D. Grantee's remedies described in this Section shall be cumulative and shall be in addition to any and all remedies now or hereafter existing at law or in equity, including the right to recover any damages for loss of Conservation Values as described in C.R.S. § 38-30.5-108. 15. Perpetual Duration. This Easement shall be a servitude running with the land in perpetuity. The provisions of this Easement that apply to Grantor or Grantee shall also apply to their respective agents, heirs, executors, administrators, assigns, and all other successors as their interests may appear; provided, however, that each Party's rights and obligations under this Easement shall terminate (as to such party,but not as to such Party's successor, who shall be bound as provided herein) upon a transfer of the Party's entire interest in this Easement or the Property, except that liability of such transferring Party for acts or omissions occurring prior to • such transfer shall survive the transfer. 16. Change of Circumstance. The fact that any use of the Property that is prohibited by this Easement, or any other use as determined by Grantee to be inconsistent with the Purpose of this Easement, may become economically more valuable than permitted uses has been considered by Grantor in granting this Easement. It is the intent of both Grantor and Grantee that such circumstances shall not justify the termination or extinguishment of this Easement pursuant to Section 13. In addition, the inability to carry on any or all of the permitted uses, or the Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 16 of 30 unprofitability of doing so, shall not impair the validity of this Easement or be considered grounds for its termination or extinguishment pursuant to Section 13. 17. Grantor's Notice. Where Grantor's notice is required in this Deed, Grantor shall notify Grantee in writing not less than sixty(60) calendar days prior to the date Grantor intends to undertake the activity in question. The written notice shall describe the proposed activity in sufficient detail (i.e. location, size, scope, design, nature) to allow Grantee to evaluate the consistency of the proposed activity with the pertinent terms of this Easement. 18. Grantee's Approval. Where Grantee's approval is required in this Deed, Grantee shall grant or withhold its approval, or shall request an additional thirty(30) days for review, in writing within thirty (30) calendar days of receipt of Grantor's written notice thereof. Grantee agrees to use best efforts to complete its review and grant or withhold its approval within the applicable timeframe. Grantor shall not engage in the proposed act or use until Grantor receives Grantee's approval in writing. 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 if Grantee reasonably determines that there is any risk that the activity as proposed is not consistent with the Purpose. Grantor shall pay any and all costs associated with the evaluation of the proposed use or activity, including,but not limited to, staff time, legal fees, and resource specialist fees,provided that Grantee provides prior good faith estimates of such costs which are approved by Grantor in writing and Grantee provides itemized invoices describing the work performed, the date such work was performed, and the hourly rate or such other method of determining the cost. 19. Notices. Any notice that any Party is required to give to the other, in writing shall be transmitted via U.S. mail, overnight delivery service or served personally to the following addresses which addresses may change from time to time by a Party, giving written notice in the manner set forth above: Grantor: Town of Avon PO Box 975 One Lake Street Avon, CO 81620 Phone: (970)748-4452 Grantee: The Board of County Commissioners of Eagle County P.O. Box 850 500 Broadway Eagle, Colorado 81631 Phone: 970-328-8605 Fax: 970-328-8629 With a copy to: Eagle County Open Space PO Box 179 Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 17 of 30 500 Broadway Eagle, CO 81631 Phone: 970-328-8698 Also with a copy to: Eagle County Attorney's Office PO Box 850 500 Broadway Eagle, CO 81631 Phone: 970-328-8685 20. Liens on the Property. No provisions of this Easement should be construed as impairing the ability of Grantor to use this Property as collateral for subsequent borrowing. Any mortgage or lien arising from such a borrowing is subordinate to this Deed. 21. No Merger. Unless the Parties expressly state that they intend a merger of estates or interests to occur, then no merger shall be deemed to have occurred hereunder or under any document executed in the future affecting this Easement. 22. Grantor's Representations and Warranties. A. Grantor warrants that Grantor: (i) has good and sufficient title to the Property, free from all liens and encumbrances securing monetary obligations except ad valorem property taxes for the current year; (ii) has the right to grant access to the Property to Grantee for the purposes described in this Easement and has in fact granted said access to Grantee; and (iii) hereby promises to defend title to the Property against all claims that may be made against it by any person claiming by, through, or under Grantor. B. Grantor represents and warrants that, after reasonable investigation and to the best of its knowledge: i. No hazardous substance or toxic waste exists nor has been generated, treated, stored, used, disposed of, deposited, or transported, in, on, or across the Property, and that there are no underground storage tanks located on the Property; ii. Grantor and the Property are in compliance with all federal, state, and local laws, regulations, and requirements applicable to the Property and its use; iii. There is no pending or threatened litigation in any way affecting, involving, or relating to the Property; and Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 18 of 30 iv. No civil or criminal proceedings or investigations have been instigated at any time or are now pending, and no notices, claims, demands, or orders have been received, arising out of any violation or alleged violation of, or failure to comply with, any federal, state, or local law, regulation, or requirement applicable to the Property or its use. 23. Acceptance. Grantee hereby accepts without reservation the rights and responsibilities conveyed by this Deed for which no goods or services were exchanged or provided. 24. General Provisions. A. Severability. If any provision of this Easement, or the application thereof to any person or circumstance, is found to be invalid, the remainder of the provisions of this Easement, or the application of such provision to persons or circumstances other than those as to which it is found to be invalid, as the case may be, shall not be affected thereby. B. Captions. The captions in this instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon construction or interpretation. C. Waiver of Defenses. Grantor hereby waives any defense of laches, estoppel or prescription and acknowledges and agrees that the one-year statute of limitation provided under C.R.S. § 38-41-119 does not apply to this Easement, and Grantor waives any rights of Grantor pursuant to such statute. D. Controlling Law and Liberal Construction. The provisions of this Easement are subject to the laws of the United States and the State of Colorado as amended (or any successor provision then applicable), and the applicable regulations promulgated thereunder. The provisions of this Easement are to be liberally construed in favor of the Purpose, and any ambiguities or questions regarding the validity of specific provisions shall be interpreted in favor of maintaining the Purpose. Any decisions resolving such ambiguities or questions shall be documented in writing. E. Counterparts. The Parties may execute this instrument in two or more counterparts which shall, in the aggregate, be signed by all Parties; each counterpart shall be deemed an original instrument as against any Party who has signed it; all counterparts, when taken together, shall constitute this Deed. F. Amendment. If circumstances arise under which the Parties each agree in their respective sole discretion that an amendment to or modification of this Deed would be appropriate, Grantor and Grantee may mutually amend this Deed; provided that no amendment shall result in private inurement for a Board member, staff or contract employee of the Parties, or affect the qualifications of this Easement under CRS 38-30.5- Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 19 of 30 101 et seq. or be inconsistent with the preservation and protection of the Conservation Values set forth herein. Any amendment must be in writing, signed by both Parties, and recorded in the official records of Eagle County, Colorado. G. Entire Agreement. This Deed sets forth the entire agreement of the Parties with respect to the terms of this Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the terms of this Easement, all of which are merged herein. 25. Development Rights. For purposes of this Easement, "Development Rights" are defined as all present or future rights to (i) construct, place, replace, enlarge, maintain or repair any improvements on the Property; or (ii) receive credit for density for development on or off the Property; but not including any rights expressly reserved to Grantor in this Easement, including but not limited to the right to construct Improvements in Sub-Section S.A. and the rights set forth in any easements, rights-of-way or other interests of recorded as of the date of recording this Deed. 26. Recording. Grantor shall record this Deed in timely fashion in the official real property records of Eagle County, Colorado, and Grantee may re-record it at any time as may be required to preserve its rights in this Easement. 27. No Third Party Enforcement. This Deed is entered into by and between Grantor and Grantee and does not create rights or responsibilities for the enforcement of the terms of this Deed in any third parties, other than the County, except as expressly reserved herein. 28. Joint and Several Liability. If Grantor at any time owns the Property in joint tenancy or tenancy in common, Grantor shall be jointly and severally liable for all obligations set forth in this Easement. 29. Ownership by Single Entity Consisting of Multiple Parties. If Grantor at any time is an entity which consists of shareholders, partners or members, such Grantor entity is required to include in its operating agreement,bylaws or other documents setting forth the rights and responsibilities of the entity, the right to assess or to otherwise collect payment from such shareholders,partners or members for any monetary or other obligations set forth in this Easement. Grantor shall provide a copy of such documentation at any time upon Grantee's request. 30. Environmental Attributes. Grantor hereby reserves all Environmental Attributes associated with the Property. "Environmental Attributes" shall mean any and all tax or 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 30 shall modify the restrictions imposed by this Easement or otherwise impair the preservation and protection of the Conservation Values. Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 20 of 30 31. Annual Appropriation. To the extent that any financial obligation of this Deed is subject to the multiple fiscal year obligations as set forth in Article 10 of the Colorado Constitution or C.R.S. § 29-1-110, such obligation may be subject to annual appropriation by Grantor. The foregoing is not an agreement or an acknowledgement by either Grantor or Grantee that any financial obligation which could arise pursuant to this Deed would be subject to the requirement that funds for such financial obligation must be appropriated by Grantor. Nothing in this Deed shall be deemed to be a waiver of any rights that Grantee may have pursuant to C.R.S. § 13-60-101. Nothing in this Section 31 shall prevent Grantee from enforcing this Deed in accordance with its terms, despite a failure by Grantor to appropriate funds. 32. Authority to Execute. Each party represents to the other that such party has full power and authority to execute and deliver this Deed, and perform its obligations under this Easement, that the individual executing this Deed on behalf of said party is fully empowered and authorized to do so, and that this Deed constitutes a valid and legally binding obligation of said party enforceable against said party in accordance with its terms. 33. Mediation of Disputes. If Grantee or Grantor has an enforcement dispute as set forth in Section 9, or if Grantee denies a request by Grantor for approval pursuant to Section 18, 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 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. Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 21 of 30 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. Each Party shall pay its own costs associated with mediation, except that Grantor and Grantee shall share the cost of the mediator. 34. Force Majeure. Grantor shall not be obligated to send any prior notice to Grantee, and Grantee shall not be entitled to bring any action against Grantor, with respect to any prudent, good faith activity undertaken by Grantor to prevent, abate, or mitigate injury to the Property immediately before, during, or immediately following fire, flood, storm, earth movement, acts of war, and similar causes beyond the control of Grantor. Grantor will promptly inform Grantee of injury to the Property caused by such events or actions. 35. Effective Date. The "Effective Date" of this Deed shall be the date of its recording in the Eagle County Clerk and Recorder's Office. 36. Pre-Approval. Nothing herein shall be construed as an approval or pre-approval by the County, in its governmental capacity, of any land use application, right or privilege desired by Grantor. TO HAVE AND TO HOLD,this Deed of Conservation Easement unto Grantee, its successors and assigns, forever. IN WITNESS WHEREOF, Grantor and Grantee,intending to legally bind themselves, have set their hands on the date first written above. GRANTOR: TOWN OF AVON, a Colorado municipal corporation a/k/a Town of Avon,Colorado By: Name: Title: STATE OF COLORADO ) ) ss. COUNTY OF ) Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 22 of 30 The foregoing instrument was acknowledged before me this day of December,2016,by , as of the Town of Avon, a Colorado municipal corporation a/k/a Town of Avon, Colorado. Witness my hand and official seal. My commission expires: Notary Public GRANTEE: EAGLE COUNTY, COLORADO by and through its Board of County Commissioners By: Jeanne McQueeney, Chair STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this day of December, 2016,by Jeanne McQueeney, Chair of Eagle County Board of County Commissioners. Witness my hand and official seal. My commission expires: Notary Public Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 23 of 30 • EXHIBIT A TRACT `B" A parcel of land Located in Tract B, described in the final subdivision plat— Amendment No. 4 Benchmark at Beaver Creek of Sections 1 and 2, T5S, R82W of the 6th P.M., in Eagle County, Colorado. LEGAL DESCRIPTION All that part of Tract B, Block 1, in A Resubdivion of Lots 5,52,53,54,55,56,57,69 & Tracts B,S,T,U,X, and a portion of Tract C — Block 1, A Specially Planned Area Town of Avon, Eagle County, Colorado described in Final Subdivision Plat—Amendment No. 4 Benchmark at Beaver Creek Eagle County Colorado recorded June 05, 1982, in Book 337 at Page 367 as Reception No. 233719 of the records of Eagle County, State of Colorado, described as follows: Beginning at the Northeast Corner of the NW 1/4 of the SE 1/4 of said Section 1, from which the C 1/4 of said Section 1 bears N 89° 49' 33" W 1336.90 feet (Basis of Bearing), thence S 00° 19' 33" E 400.00 feet along the East Line of said NW 1/4 of the SE 1/4 of said Section 1; Thence leaving the East Line of said NW 1/4 of the SE 1/4, S 38° 27' 09" W 1690.76 feet to the most Northerly Corner of Lot 5 of said Amendment No. 4; Thence S 61° 33' 13"W 225.43 feet along the Westerly Line of said Lot 5 to an angle point; Thence continued along said Westerly Line of Lot 5, S 43° 01' 31" W 260.00 feet to an angle point; Thence S 59° 08' 32" W 23.55 feet along said Westerly Line of Lot 5 to the Northeasterly Corner of Lot 51 of said Amendment No. 4; Thence leaving said Westerly Line of Lot 5, N 75° 58' 23" W 152.36 feet along the Northerly Line of said Lot 51 to the Northeasterly Corner of Lot 50 of said Amendment No. 4; Thence N 37° 22' 48"W 140.00 feet along the Northerly Line of said Lot 50 to the Northeasterly Corner of Lot 49 of said Amendment No. 4; Thence N 52° 40' 07" W 298.27 feet along the Northerly Line of said Lot 49 and Lot 48 of said Amendment No. 4 to the Northwesterly Corner thereof; Thence along the Westerly Line of said Lot 48, S 55° 05' 28" W 320.00 feet to the Northerly right of way of Nottingham Road; Thence N 79° 54' 32" W 179.84 feet along said Northerly right of way of Nottingham Road to the Southeast Corner of Lot 47 of said Amendment No. 4; Thence N 01° 44' 47" E 41.13 feet along the Easterly Line of said Lot 47 to the Northeasterly Corner thereof; Thence N 79° 54' 32" W 930.00 feet along the North Line of Lots 47 and 46 to the Northwesterly Corner of Lot 46 of said Amendment No. 4; Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 24 of 30 Thence leaving said Northerly Lot 46 of said Amendment No. 4, N 84° 17' 19" W 172.00 feet to the Northeasterly Corner of Lot 45 of said Amendment No. 4; Thence along the North Line of said Lot 45 and Lot 44, N 82° 33' 34" W 397.14 feet to the Northeasterly Corner of Lot 43 said Amendment No. 4; Thence along the North Line of said Lot 43 to the most Northerly point of said Lot 43, N 52° 47' 39"W 95.53 feet; Thence leaving said North Line of Lot 43, S 73° 55' 27" W 113.22 feet to the Northeasterly Corner of Lot 70A of said Amendment No. 4; Thence along the North Line of said Lot 70A and Lot 70 of said Amendment No. 4, N 88° 57' 53" W 499.24 feet to the Northwesterly Corner of said Lot 70; Thence S 34° 57' 08" E 40.25 feet along the Westerly Line of said Lot 70 to the Northeasterly Corner of Lot 42 of said Amendment No. 4; Thence S 80° 32' 44" W 155.00 feet along the North Line of said Lot 42 to the Northwesterly Corner thereof; Thence leaving said North Line of Lot 42, S 80° 32' 44" W 110.00 feet to the Northeasterly Corner of Lot 30 of said Amendment No. 4; Thence S 80° 32' 44" W 399.89 feet along the North Line of said Lots 30 and 31 of said Amendment No. 4 to the Northwesterly Corner of said Lot 31; Thence leaving the North Line of said Lot 31, N 25° 04' 26" W 436.84 feet along the Easterly Lines of Lot 32 and Lots 34 thru 36 to the Center of the SE 1/4 of said Section 2; Thence S 89° 17' 27" E 1360.58 feet along the North Line of the SE 1/4 of the SE 1/4 to the Northwest Corner of the SW 1/4 of the SW 1/4 of said Section 1; Thence S 89° 48' 00" E 2649.26 feet along the North Line of the S 1/2 of the S 1/2 of said Section 1 to the Northeast Corner of the SE 1/4 of the SW 1/4 of said Section 1; Thence N 00° 28' 18" W 1324.86 feet along the West Line of the SE 1/4 to the C 1/4 of said Section 1; Thence S 89° 49' 33" E 1336.90 feet along the North Line of the SE 1/4 of said Section 1 to Northeast Corner of the NW 1/4 of the SE 1/4 of said Section 1 and the POINT OF BEGINNING. Total Area=72.7048 acres, more or less. Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 25 of 30 EXHIBIT B TRACT "C" A description of Tract C, described in the Final Subdivision Plat — Amendment No. 4 Benchmark at Beaver Creek of Sections 1 and 12, T5S, R82W of the 6th P.M., in Eagle County, Colorado. LEGAL DESCRIPTION All of Tract C, as shown in A Resubdivision of Lots 67, 68 and a portion of Tract C, Block 1, Town of Avon, Eagle County, Colorado described in Final Subdivision Plat—Amendment No. 4 Benchmark at Beaver Creek Eagle County Colorado recorded November 05, 1982, in Book 348 at Page 296 as Reception No. 244637 of the records of Eagle County, State of Colorado. Total Area=24.64 acres, more or less. Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 26 of 30 EXHIBIT C (Map of portion of Tract B) Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 27 of 30 EXHIBIT D (Map of portion of Tract C) Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 28 of 30 EXHIBIT E (Baseline Report) Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 29 of 30 EXHIBIT F Sample Notice of Transfer of Property To: Eagle County, Colorado ("Grantee") From: [Insert name of fee owner] ("Grantor") Pursuant to Section 11 of the Deed of Conservation Easement recorded (date) under Reception No. , Grantee is hereby notified by Grantor of the proposed transfer of the fee simple interest in the subject Property legally described in Exhibit A attached hereto to be 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 20_,by as of Witness my hand and official seal. My commission expires: Notary Public Date: Avon Northside Conservation Easement DRAFT Dec 14,2016 Page 30 of 30