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Home My WebLink AboutBOCC Packet 01082013 Two Shoes BOCC SPECIAL MEETING JANUARY 8, 2013 TWO SHOES PRESENTATION Jon Peacock, County Manager, repeated his full presentation as he gave it at the Regular Meeting of the BOCC on December 19, 2012. AGENDA ITEM SUMMARY REGULAR MEETIIVG DATE: December 19,2412 AGENDA ITEM TITLE: Approvc on first reading,and set for public hcaring oa lanuary 8, 2413 an Agreement between Couniy Road,LLC,Ranch Lske III, Inc.,Ranch Lake IV,LLC Ranch III,LLC and Ranch N,LLC ("Two Shces")and the Pitkin County Board of County Commissioners(the"County"). STAFF RESPONSIBLE: Jon Peacock,County Managar ISSUE STATEMENT: This is a first reading for an agreemcnt between the County and proponents of the Sutey/Two$hces Land Exchange. BACKGROUND; For the past fiwo years,Pitkin County has been engaged in discussions and negotiations with proponents of the Sutey/Two Shces Land Exchange. In F�brusry 2011,Two Shoes submittcd a proposal to the BLM for an Administrative L.and Exchango. Many of the County's cvmmunity partreers h�ve supported the exchange,including Aspen Va[Iey Lan.d Trust,Crystai River Caucus,Garfield Couniy Commissiancrs,Eagle County Commissioners,Carbondale Town Councit,Eagk Valiey L�nd Trust,the Color�do Division of Parks and Wiidtife,Sicrra Club, Wilderness Society,Colorado Environmental Coalition,the Rosring Fork Audubon Socicty. However,the Board continu�to have reservations about whether thet�e was su�cient public benefit io support the exehange as expressed in�Junc 2012 tettcx Eo tfu BLM. In August 2012, the Bosrd diracted the County Manager to continue discussions with thc pnnponents of the �xch�ngo on beha[f of the Board. The goat of angoictg discussions wes to signific�ently impzove the pubtic ben�fits of the proposed Aclministrative Land Exchange,and join our many community partners in supporting it. After sc�+eral months of productive discussions with the propon�nt's represent�tiv�we havc reached an agreement(attached}that me�ts th�Board's� goals. In the agreement with Pitkin County,which is not part of the exchangc application with the Bureau of T,.aand Management(BLM),proponents have agrted to consern sdditional land for wildlife,relinquish c�evelopment rights to maintain vicws,and to pay for r�cr�ational opportunitics for the public as follows: � Wiidtite Benefits:A conservation eascment witl be placod on two parcels of tha Two Shoes R�nch within the are�krwwn as Potato Bi!!.These parcels wers ickntified by thc Colorado Division of Parks and Wildlife as import�nt winter rango for deer and eltc,and signi�eRnt cliff habit�t for big horn sheep.Thc conservation easements will protxt the propedy from future dovelopment and recre�tional uses and wiil be administerec!by Aspen Valley Land Trust. • Vic^w Protection:Development rights for ten singic-family homes in the Crystal River Valley totaling 50,000 square feet along Highway I33 and Prince Creek Road will be extinguished.A proposed indoor riding arena near Highway 133 will be moved to a less visually impactful location. • Additionai Recc eation:The County will receive s contribution of S70(?,040 from the proponent,for thc costs ofproperty acquisition and trail construction including approximately 10 aeres of land needed to create a one-mile-long trail parallel to Prince Crrxk Road within what is now the Tybar Ranch. Should the County not be suceessful in obtaining the trail corridor adjacent to Prince Creek Road,the money could be used to improve the Rio Grando Trail connecting the Crystal River Vallty with the Roaring Fork Valley or for other open space opportunities in the Crystal River Valley area. These benefits wouid become effective upon approval of the BLM exchange. In addition to the public benefits agre,ed to with Pitkin County,the proponents have added the � Haynes/West Crown Property in Pitkin County to the exchange.This is an imporCant access point for mountain bikcrs to the Crown in the Prince Crcek drainage. An additiona137 acres was also added to the Sutey Ranch exchange increasing that pmperty,located adjacent to the Rod Hill Recreation Area. T�►e add�d acreage will not only enhance recreational opportunities but also provide valuable wildlife habitat and additional water rights. Upon approval of the Agrcemont,a Iettcr in support of the exchange,from the Piikin County Board of Commissioners,will be sent to tiie Bureau of Lazid Management for iis considoration. LINK TO STRATEGIC PLAN: Flourishing Natural and Built Environment:Conserved Natural Resources and Environment Livable and Supportive Community:Access to recreation,education,arts and culture. BUDGETARY IMPACT: 'Fhe agreement provides funding for property acquisition and trai! development(up to 5704,000),or other open space pmjects as mutualiy agreed to by the proponents and the County. RECOMMENDED BOCC ACTION: Approve the agreement on first reading,set for public hcaring on January 8�'suthorizing the County Manager to sign the agreement, ATTACHMENTS: Agreement betwcen County Road,LLC,Ranch Lake III,Inc.,Ranch Lake N,LLC Ranch III,LLC and Ranch N,LLC("Two Shoes")and the Pitkin County Boazd of County Commissioners(the"County"). .._ -----_ , AGREEMENT This Agreement("Agreement")is made and entered'ento this�,day of 2012 betwcen 2343 County Road,LLC,R�nch Lake III,3nc.,Ranch I.ake N,LLC,Ranch III,LLC and Ranch N,LLC, ("Two Shces"}and The Pitkin County Board of County Commissioners (the"County"). RECITALS WHEREAS,Two Shoes Ranch includos certain real property located in Piticin County and Garfield County,described in Deeds recorded at: 1. Reception No.756089,Garfield County 2. Reception No.526422,Pitkin County 3. Reception No.529'705,Pitkin County 4. Reception No.473325,Pitkin County 5. Reception No.473331,Pitkin County WHEREAS,Two Shoes has proposed�land exchange as evidenccd in its submittal to the Bureau of Land Management(`BLM")of the Sutey Ranch Bureau of Land Management Administrative Land Exchange on February 11,2011 and Amended on March IS,2011 (the "Exchange"); WHERE�►S,the Exchango includes,among other things,the deeding of certain BLM Parcels (the"BLM Paroels")to Two Shces.; WHEREAS,the County has expressed reservations about the Exchange as moro specifically spelled out in•its)une 19,20121etter to Mr. Steve Bennett,Field Manager of BLM conceming"Pitkin County's comments on the proposed Sutey Land Exchange"; WHEREAS,the County and Two Shoes desire to agree upon the addition of certain public beneftts that will be grsnted by Two Shoes for the benefit of Pitkin County upon the finai consummation of the Exchange; WHEREAS,the County now dosires to support the Exchan�e and modify its June 19, 20t21etter to the BLM,by a letter of support and other public pronouncements of support subject to the terms,provisions and conditions contained in this Agreement. WITNESSETH NOW,THEREFORE,for and in consideration of tho premises,the mutual covenants and agreemonts herein cont�in�d,the foregoing Recitals,and other good and valuable considerations, the receipt and sufficiency of which are hereby acicnowledged,the parties agrce as follows: 1. �ountY Su,�p�. The County agrces to support the Exchange,subject to terms, provisions and eonditions containcd in this Agreement. Its support shall incl�dc thc delivery to 1 _ � �.Y..�.w � � ��_____ the BLM of the Exchange Support Letter attached herCto as Elchibit A and incorporated herein by this reference,which delivery shall occur no later than one(1)business day after this Agreement is signed by both parties.This agreement and th�support lettcr attached as Exhibit A, represents the official policy of Pitkin County regarding the Sutey/Two Shoes Land Exchange. When reasonably requested by Two Shoes,thc Board,working through the County Manager, shall direct couaty staff in their professional capacity to reiterate the County's support for the exchange either through public statements or sdditional letters of support.The County will not take any action whatsoever which in any way challenges or appeals the BLM process or seeks to prevent a BLM decision to move forward with the Exchange,or in any manner seeks to prevent the Exchange's consummation. 2. Conservation Easexnet►ts. Two Shces will record Conservation Easements with Aspen Valley Land Trust,substantaally in the form attached hereto as Exhibit B("EasemenY') against ceitain lands(in the Potato Bill area),which lands are described in the Conservation Fasements attaehed hereto and incorporated herein by tkus reference.Once the Conservation Easements have been completed and executed,they will be held in Escrow with Land Title Guarantee Company of Aspen("Title Company"). . The Conservation Easements shall be recorded after the deeding of thc BLM Parcels to Two Shoes and the expiration of a11 protest, challenges or stay periods.If tho Exchange is not completed,thcn upon the request by Two Shces,the Escrow Agent shall return the Conservation Easemonts to Two Shoes,whereupon . they sha11 be null and void and of no effect. 3. Crystal Island R�nch Approval. Two Shces agrees to relinquish ten(10)vested developrnent rights acquired during the Crystal Island Ranch Subdivision Approval("Approval") which lots are described on Exhibit C attached hereto and incorporated herein by this reference. This relinquishment shall be accomplished through the recording of a Deed Restriction against each lot,attached as Exhibit D hereto,which restriction shall preclude any residential development. The relinquishmont of the developm�nt rights shall be recorded after the deeding of the BLM Parcels to Two Shoos and the expir�tion of all protest,challenges or stay periods. If the Exchango is not completed,then upon the request by Two Shoes,the Escrow Agent shall return Conservation Easement to Two Shoes,whereupon it shall be null and void and of no effect. 4. Ridin�A,rena. The current vested size and location of the riding arena,agreed upon in the Approval,may be changed to tho location on the adjacent property,described on E�ibit E,attached hereto and incorporated herein by this reference,which is a less visible location. This relocation may be approved through site plan reviow,scenic view protection and a development agreement,vesting those rights for ten(10)years. Two Shoes may agply for the relocation,scenic view protection and vesting of the riding arena after the execurion of this Agreement. 5. �'rail Easement�arcel. Within one(1)busincss day of execution of this Agre�ment,Two Shces shall deposit with the Title Company$700,000.00 to be held,in escrow, in a separate account to the benefit of the Pitkin County Board of County Commissioners for the acquisition of Open Space.The Escrow Instructions sh�ll recite that aftec the deeding of the 2 BLM Parcels to Two Shoes and the expiration of all protest,chailenges or stay periods,and the purchase by Pitkin County of the Ty Bar Parcel and conshuction of an approximatcly one mile of trail as shown on Exhibit F,attached hereto and incorporated herein by this reference,("thc Property")the$700,000.00 shall be delivered to Pitk�n County to reimburse the County for the purchase price of the Property and trail consiruction. In tha event thc Property and trail construction costs less than$700,000.00,any remaining funds may be used by the County for riparian azca improvements or parking on the Propedy. In the event the County has not acquired thc Property by the time of the deeding of the BLM Parcels to Two Shoes and the expiration of all protest,challenges or stay periods,the$700,OOQ.00 shall be delivered to Pitkin County to be used for Rio Grande Trail improvements. Two Shoes and the County may also mutually agree • upon the use of the$700,000.00 for the acquisition of trails or Clpen Space in the Crystal River area.In the event the County has purchased the Pmperty, and the Exchange daes nat occur,the Escrow Agent shall deliver to the County$350,000.00 or one-h�lf of the purchase pricc paid by the Cottnty for ttte actual Property,whichever is less. The remsining funds shall thereupon be delivered to Two Shoes. In the evcnt the County has not puc�chased the Property,and the Exchange dces not occur,the Escrow Agent shall,upon written request from Two Shoes,deliver to Two Shoes the entire$700,000.00 hcld in Escrow. 6. Counterp�r�g[�simile. This Agreement may be executed in o�e or more counterparts which together shall be one and the same instrument,binding on a(I parties, although not signatory to ihe same original documont.This Agreement can be accepteQ and/or executed by either party by facsimile,email or electronic transmission which shall be binding upon the party so executing. 7. Futther Assur�nces. Each of the parties agrees to execute,acknowledge and deliver,or cause to be executed,acknowledged and de(ivered,such further instruments and documents and to do all things and acts$s the other party may reasonably require in order to carry out the intentions of this Agreement and the transactions contemplated hereby. 8. Entire A�reemen� This Ageement contains the entire agreement between the parties end supersedas all prior understandings,negotiations arn!represent�tions,written or oral, not contained herein. It may not be amended or modified excepi by t�rt agreement in writing signed by both parties he�reto. 9. Interpretation. No provision of this Agreement shall be construed against or interpreted to the disac�vantage of any party by reason of such psrty having,or being deemed to have requested,drafted,required or structured such provision. 10. Controliin�,Laws. This Agreement shall be eonstrued in accordance with and governed by the laws of the State of Colorado. 11. Attorncy '„�Fees. In the event of any litigation bctween the parties involving the interpretation and/or enforcement of this Agreement or any provision lureof,the substantially prcvailing party shall be�ntiticd to an award of its costs and cxpenses(including rcasonablc 3 costs and attomeys'fees)incurred therein as a part of the judgment or stipulated settlement entered in such litigation. 12. Notice. Any notice requ�red under this Agreement shall be deemed delivered by facsimile transmission(as evidenced by the date of the transmission confirmation from the ssnding facsimile machine),hand delivery,facsimile,Certified mail retum rcceipt requested or delivered by overnight courier to the following addresses: If to Two Shces• Gideon Kaufman 315 E.Hyman Avenue,Sfe.30S Aspen,Colorado 81611 �f to the Countv: Piikin County Manager Attn:Jon Peacock 530 East Main Strxt Aspen,Colocado 81611 � iN WITNESS WHERE�F,the parties hereto have executed this Agreement as of the day and year first above written. 2343 County Road,LLC, By: Ranch Lake III,Inc., By: � Ranch I.ake IV,LLC, By: Ranch III,LLC By: Ranch IV,LLC By: 4 Pit[cin County Board of County Commissioners By: Approved as to Form Piticin County Attorney By: John Ety 5 _ =--�-- - Exhibit A -BLM Letter January 9,2013 Mr. Steve Bennett,Field Manager, U.S.Bureau of Land Management U.S.Bureau of Land Management,Colorado River Valtey Field Office 2300 River Fmntage Road Silt,CO 81652 ��.;, :��: Dear Mr.Bennett: � �,:' f �x� �� ° '��'�� This letter is written on behalf of the Pitkin County'��ard df��ommissioners in support of the Sutey/Two Shoes land exchange. P�tku�,,C�o�nty's suppor�`�vf the proposed land exchange is based on enhanced public ben�f�ts+�1�'ered by the propo�icnts,both in the � exchange proposal now under consideratioti;�i�y your office,and throu�gh,a separate agreement with Piticin County tied to consum�iation of the�xchange With these enhancements the Pitkin County Board of Comiqt�sione�s,�oins our man��tnmunity ��-� partners,including,but not Iimit�d to.the Eagle C��y,C�ommissioners,Garfield County Commissioners,Carbondale Tov�hr �e�1,Aspen�7a�l�y Lanc2 Trust,Eagle Valley Land Trust,The Cotorado Division ofP��a�d i�Vildlife,Sie��lub,Wilderness Society, Colorado Environmental Coalition,tt�G�oanrig Fprl�c AuduliQn Socicty,the Crystal River Caucus and many oihers��supporting th�Sutey lansie�change.�e � , � . . ,� � r� �, ;� � ..�s; '��`� � �,.��; Since the Sutey iaad:4xchange�as originall}��roposed iri 2010 Pitkin County has expressed cancern ati`gut whethe�there was adc�uate public benefit to justify it,most recently in�J�ne 19,2��214�y�ur of�ce: t'Pitkin County now believes thore is a substarit�al,publio:beneff to�h�oxcha»�o�,�,light�qfwhat has been agreed to by the � � �., „, �.�., proponents,thc rimost:iu�port�r�t of which are high[ightcd hereafter, The proposal now unde��nsidera'teon by your office has signifieantly more public 6 +€. ' .��` ��'�� . benefits f�iar�originally proposed in the�legislative exchange. From Pitkin County's perspective tti�most import�#t,enhancements to the proposal now under consideration by �� your office are � �, �: • The addition�Of`tIi�Haynes/West Crown property,which is an important access point to the Crown Pitkin County requested this parcel be added when originally discussing thc l�gislative proposal and we are glad to see it included ia the most reeent proposaL • The addition of thiriy seven acres to the Sutey ranch further enhancing the wildlife values of the property; .__ ._�� Mr.Steve Bennett,Field Manager,U.S.Bureau of Lar►d Management December 14,2012 Page 2 • The$I.1 mitlion pravided by the proponents for development of a site specific management ptan for the Sutey Rarich(S 100k)and fiir�s for lang-term implementation of the mana.gement plan($1 Ivn. Furthermore,in a separate agreemtnt with Pitkin County the proponents have a�to addirional public benefits that will protect wildlife,maintain view sheds,and enhance recreation opportunities for the public. Whi1e not part of the exctiange proposal with the BLM we believe it is important that both your office and the pubtic be aware of these additional benefits as you evaluate the Iand exchange. • Witdlife En6ancements-Upon approval of the exchange the pcoponents have . agreed ta place a conservation easement on two.parcelS of the Two Shoes Ranch known as the Potato Bill area{sce Attachment A). The Colorado Division of Parks and Wildlife identified thesc two parcels as very important winter habitat for deer,ellc,and big horn sheep(see Colorado Parks and Wildlife comment letter dated 6/20/2012). The conscrvation easements will rccognize the important wildlife values of the land,and will protect the property from future development and recreation uses. • �ew shed Protection-The natural landscapa and visual quality of the Crystal River Valley contributes significantly to the quality of lif�of residents and visitors atike. The proponents have 10 vested single family development rights acquired during the Crystal Valley Ranch subdivision and approval for an indoor riding arena which,if developed,would have a significant visual impact from Highway 133. Upon approval of the exchange the proponents have agreed to extinguish the 10 vested single family development rights totaling 50,000 square feet of potential development,which will result in significant amounts af land remaining undisturbed and undevcloped. The proponents have atso agreed to move the indoor riding arena to a less visua(Iy irnpactfui Iocation(see Attaclunent B). • Recreation Enhancement-Upon approval of the exchange,the proponents have agteed to assist the county in acquiring approximately 10 acres to create a trail parallel to Prince Creek for approximately one mile,within what is now the Tybar Ranch(see Attachment C). Recreational use on Prince Cre�k Road by bicycles and pedestrians has dramatically increased in the last decade as residents and visitors seek to access the Crown and Hays Park.This trail would improve safety on the Tybaz reach of this road(above the bend at the Ftying Dog Barn)and would providc safe,managed�r►d legai�ccess for the publie to the Crown from the Prince Creek area. Should the County not be successful in obtaining the 10 acr�cs eajacent to Prince Creek,tho proponents have agreed to�ssist the County with improvements to the Rio Grande Trail(a major trail artery connecting the Crystal River Valley with the Roaring Fork Valley or other Open Space and Trail opportunities in the Crystal River area) Mr. Steve Bennett,Field Manager,U.S.Bureau of I,and Management December 14,2012 Page 3 In Summary,Pitkin County now supports the Sutey Land Exchange in light of the considerabte errhancements the proponents have made both in the proposal to the BLM and through s separate agreement with Pitkin County. Pitkin County encaurages the BLM to move forward with its due diligonce on this exchange proposal,including an Environmental Assessment or Environmental Impact Statement,whichever 1eve1 of analysis the BLM determines is appropriate. We are happy to be able to communicate to your office the additional public benefits that will be reatized if the Sutey Ranch Land Exchange is approved. . We recognize that discussion about this land exchange have not always been easy. Though at times difficult,we appreciate the willingness of the proponents to seek o,pporte�nities to improve the public benefits of the txchange,and now look forward to approval of the exchange with all the enhancements and public benefits discussed herein. Sincerely, Signed by supporting board members �.�.��,�..,, _ _-� _ Mr. Steve Bennett, Field Manager,U.S. Bureau of Land Management December 14,2012 Page 4 Attachment A-Potato Bitl Conseru�tion E�.sements � � � z � � � � �' � �. � �_ ��.. �. .. ��___....�__...�__._� �.� _�..�e�:�:..�...��..� .. 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' =: . 2�.x -r» a �' u�+*�',?s��,' a+ �'� , `°�„y� *� ��' a.., r�.�" � . � �� *'a.� �.- � .�.' „ ,�,.: e` .. °u �;.a-,� ��rs 5aw'� � '� `� '�� »�t �"° �,,;� ; � a� �"� �' ,� , �� , �,� ,,,�;r. - � + �� -s r "�S�r :.5,- �� 3.,; �' �� : ° �k •:,, .. . , :` � �� '�# * �A.�� +� �� "� �`� i �`� 6� ' ,�; �• *°�,�'� � �'{�� f , , .. �� . . �� I t i '`s � yk # � Mr. Steve Bennett, Field Manager, U.S. Bureau of Land Management December 14, 2012 Page 5 Attachment B—Crystal Valley Ranch Development Right Extinguishment �...�...�._._ ----�__:_...�.�.��__._. __. ��"�� °g ' ��c�;sta.-��ai:��r:�a � �,.,. , -� � . �., � F ..� � .� � � b . -� s � � - . . '>.., . , ' . 1'a,F`�»,�.. m..m. x�.�? 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This payment is exempt from the transfer fee restrictions contained within C.R.S.38-35-127. DEED OF CONSERVATION EASEMENT IN GROSS . Two Shoes Ranch IV—Lower Potato Bill Parcel Pitkin County THIS DEED OF CONSERVATION EASEMENT IN GROSS ("Easement") is granted this _ day of , , by RANCH N LLC, a Colorado limitcd liability company ("Grantor'�, to and for the benefit of ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation having offices at 320 Main Street, Suite 204, Carbondalc, Colorado 81623 (the"TrusY')(collectively,the"Parties"). The following exhibits are attached hereto and incorporated in this Easement by reference: Exhibit A:Properiy Legal Description;and Exhibit B:Map of Property. RECITALS WHEREAS, Grantor is the sole owner in fee simple of approximately 242 acres of real property, more or less, located on Potato Bill Creek in Pitkin County, State of Colorado, more particularly described in Exhibit A herein(the"Property"); WHEREAS,the Property possesses natural, scenic,open space, agricultural, and wildlife values (collectively, "Conservation Values") of importance to Gr�ntor, the Trust, and the people of the State of Colorado that are worthy of preservation; WHEREAS, the Conservation Values of the Property are documented more specifically in the Baseline Documentation, described in Section 4 herein, and generally include the following, thc protcction of which are recognized under §170(hx4)(A) of the Internal Revenue Code of 1986, as amendcd ("IRC"), and §1.170A-14(d) of the Treasury Regulations as valid conservation purposes: • Relativc�y Natural Habitat [§ 1.170A-14(d)(3)�. The Pmperty provides natural habitat for many wildlife and plant species, and is traversed by Potato Bitl Crak, an intermittcnt stream, and its steep inclines. It is part of Two Shoes Ranch and abuts an undeveloped area of the White River National Forest, and is comprised mostly of pinyon and juniper 1 Exhibit B —Lower Potato Bill Conservation Easement forests. In particular, the Property provides significant cliff habitat for bighorn sheep, potential nesting habitat for peregrine falcons,and important winter rangc for deer and�lk. • Open Space [§ 1.170A-14(dx4)]. The Property qualifies as open space because it will be preserved for tho scenic enjoyment of the general public and is pursuant to a clearly delineated federal, state or local governmental conservation policy and will yield a significant public benefit. o Scenic Enjovment. The Property lies adjacent to National Forest land on the northwestern flanks of Mount Sopris,and as such is part of the scenic rural landscape surrounding Mount Sopris. The Property is also visible from Statc Highway 133, a heavily uscd public road close to the Town of Carbondale and part of the West Elk Loop Scenic Byway. o A�riculture. The Property is part of a large active ranch, and as such provides rangeland for livestock grazing. o Govemmental Policies. Conservation of the Property is promoted by certain state, federal and local governmentai policies, laws and ngulations, which support conservation of the Property relative to its scenic, wildlifo habitat and natural srea values,including the following: • The State of Colorado has recognized the importance of private efforts toward the preservation of natural systems in the State by the enactment of Colorado Revised Statutes("C.R.S.") §§38-30.5-101 et seq. In addition, C.R.S. §33-1-101 provides in relevant part that"it is the policy of the state of Colorado fhat the wildlifa and their environment are to be protected, preserved, enhanced, and managed for the use, benefit, and enjoyment of the pcopte of this state and its visitors." 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 opcn land . . ." • Colorado Parks and Wildlife ("CPW") promotes the conservation of the Property as it provides potential nesting habitat for peregrine falcons as mapped by the . CPW,a Tier 1 Species of Greatest Conscrvation Nced, and significant cliff habitat for bighorn sheep,a Tier 2 Species of Greatest Conservation Need,as identified in CPW's 2006 Comprehensivc Wildlife Conscrvation Strategy and Wildtife Action Plans, and which species are also listed as having special conservation status in Colorado. o Si�nificant Public Bcnefit. The Property is located in a rural, agricultural, mountainous area of Pitkin County less than four miles from the Town of Carbond�le, - where there is a current and foreseeable trend of dcvelopment in the general vicinity of the Property. There is a strong likelihood that development of the Proporty would compromise its sccnic�nd natural character and the ecological integrity of the area. 2 Exhibit B —Lower Potato Bill Conservation Easement WHEREAS, the Parties acknowledge that this Easement will be recorded and placed on the Property immediately upon completion of the Sutey/Two Shces administrative land exchange,and after the expiration of all protests,challenges or stay periods; WHEREAS,Grantor intends,as owner of the Property,to convey to the Trust thc right to preserve and protect the Conservation Values in perpetuity and thc Trust agrees by accepting this grant to honor the intentions of Grantor stated herein and to preserve and protect in perpetuity the Conservation Values for the benefit of this generation and the generations to come; WHEREAS,the Trust is a charitable organization as described in IRC §501(c)(3), and is a publicly-supportcd organization as described in IRC §170(b)(1xA) whose primary purpose is to permanently preserve and protect the natural, scenic, agricuitural, historical, and open space resources of the greater Roaring Fork and Colorado River Valleys, including the area in which the Property is located,and who is a"qualified organization"to do so within the meaning of IRC §170(h)(3), possessing the resources and commitment to protect and defend the conservation purposes of this grant and Conservation Values identified herein; WHEREAS, the Trust also meets requirements of Colorado law as a qualified recipient for a conservation easement under C.R.S. §38-30.5-104, and is accredited by the Land Trust Aeereditation Commission for the term ending August 31,2013;and WHEREAS, the Board of Directors of the Trust has duly authorized the Trust's Executive Director or her designee to execute and accept this conservation easement on behalf of the Trust. � AGREEMENT NOW, THEREFORE, in consideration of the matters above, the mutual covenants, terms, conditions and restrictions contained herein, and other good and valu�ble consideration, the receipt and sufficiency of which are hereby acknowledged,the Paities agree as follows: 1. GR.�irrr Grantor hereby voluntarily and irrevocably grants and convcys to the Trust a perpetual Conservation E�sement in gross ("Easement"), pursuant to C.R.S. §§38-30.5-101 et seq., through the terms mutually agreed to in this Easement, consisting of the rights and restrictions enumerated herein, over and across the Property, to hold said Easement unto the Trust and its successors and assigns forever. Grantor agfees that the donation of the Easemont givos rise to a property right, immediately vested in the Trust, which shall constitute a binding servitude upon the Property and shall be subject to prior reservations, easements, encumbrances and exceptions of record,except as otherwise set forth herein. 2. PUItrOSEs 3 � �.� ___�. . LL �.r:� Exhibit B —Lower Potato B�II Conservation Easement Pursuant to the terms of C.R.S. §g38-30.5-101 et seq.,the purpases of the Easement are to assure that the Property wi11 remain forevcr predominanNy in its scenic, natural and open space.condition, subject to ihe uscs of the Property permitted hereunder, including ongoing �razing and agricultural use, to protect and preserve the Conservation Values in perpewity, to prevent any use of the Property that is inconsistent with the preservation and protection of the Conservation Values and, in the event of their degradation or destruction, to restore such Conservation Values as required herein. The primary purposes of this Easement are: 1) to preserve and protect importani natural habitat; 2)to protect agricultural range land;3)to pr.otect scenic resources visible to the public;4)to prevent residential development on the Property;and S) to prevent mineral development of the Property to the degree that Grantor is able. (T'his paragraph collectively describes the"Purposes"of this Easement.) 3. INrErrr Subject to the express reservations and prohibitions described in Section 7 below, the intent of the Parties is to permit all specified uses of the Property and any other uses that are not inconsistent with the preservation and protection of the Conservation Values as determined by the Trust in its sole discretion. Nothing in this Easement is intended to prevent Grantor's quiet and reasonable enjoyment of the Property,or to compel a specific use of the Property other than the preservation and protection of the Conservation Values. 4. BASELINE DOCUMENTATION The Parties acknowledge that a Basetine Documentation of the Conservation Valucs and retevant features of the Property was pnpared an by Colorado Wildlife Scier�ce, LLC of Basalt,Colorado, a company familiar with conservation easements,the Property,and the envimns, which witl bc kept on file with the Parties. The Trust and Grantor acknowledge and agree that by the exec,ution of this Fasement, they hereby approve, acknowledgc,and accept the Baseline Documentation ss an accurate representation of tho condition of the Property at the time of this grant. The Parties agrce that the Basclinc Documentation is not intendcd to preclude the use of other evidence to establish the present condition of tho Property should a controversy arisc over its use. 5. RIGHTS OF THE TRUST To fulfill the Purposes of this Easement, Grantor hereby conveys to the Trust a property right and interest in the form of this Easement, which immediaiely vests with the Trust (as agrced in Scction i and stipulated in Section 14.3,herein),and includes the following aff'irmative rights: 5.1. All dovclopment rights deriying from, based upon, or attributable to the Property in any,way ("Trust's Development Rights"), except those expressly reserved by Gru►tor in Section 7 herein, and the Parties agree th�t Trust's Developmcnt Rights shall be held by the Trust in peipetuity in order to fulfill the Purpose of this Easement,and to ensure that such rights are forever relcased,terminated and extinguished as to Grantor. The grant of this Easement shall not entitle Grantor to increase development density on�djacent properties own�d by Grantor,or � 4 � _._.��..•+.� ��111I�Ylr Exhibit B --Lower Potato Bill Conservation Easement to create any transferrable developmcnt rights from the PropGrty onto such adjacent properties. The granting of this Easement across only part of a dcvelopable lot as approved by Pitkin County and depicted on Elchibit A,does not in any way prevent development of the remainder of the lot, which lot shall retain all previously granted development approvals from Pitkin Counry,with the exception that the portion of the lot included in this Property shall be subject to the terms of this Easement in perpetuity; 5.2. The right to preserve and protect the Conservation Values in perpetuity; 5.3. The right to enter upon the Property at Ieast annually at reasonable times agreed to mutually by Grantor and the Trust to inspact the Property thoroughly, to monitor Grantor's compliance with, and othecwise enforce the terms of this Easement; provided that such entry sha11 not unreasonably interfere with Grantor's use and quiet enjoyment of thc Property,with the exception that, upon an advanead good faith attempt to contact Grantor verbally or electronically, the Trust may immediately enter upon the Property in the event the Trust reasonably believes that such entry is tssential to prevent or mitigate a violation of the Easement; 5.4. The right, as an interest owner in the Property, to prevent or enjoin Grantor or third parties(whether or not invitees of Grantor) from conducting any activity on, or use of,the Property that is inconsistent with the purposes of the Easement; and the right to require Grantor or third parties, as may be responsible, to restore such areas or features of the Property that are damaged by any inconsistent activity or use,subject to the qualifications of Section 13.5 herein; 5.5. Any other rights that the Parties may approve consistent with the purposes of the Easement,including adding additional purposes or defining additional Conservation Values;and 5.6. The right, as an interest owner in the Property, to receive notification from and join Grantor as a necessary party to any condemnation or eminent domain proceedings affecting the Property (as described in Section 14), or to any lesses, surface use agnements, damage agrcements or rights-of-way that may be proposed, granted or required hereafter as a result of mineral developmcnt (as described in Section 73.G) or other activities with the potential to impact the surface of the Property or its Conservation Values. 6. RIGNTS OF GRANTOR Grantor reserves to itself and to its personal representatives, heirs, successors, and assigns,all rights and obligations�ccruing from its ownership of the Property,including the right to ongage in all uses of tho Property not prohibited herein that are not inconsistent with the preservation and protection of the Conservation Values, pursuant to IRC §t 70(hx3) and C.R.S. §38-30.5-102. 7. PROHIBTTED AND PERMITTED USES The following uses and practiees by Grantor, though not an exh�ustive recital, �re either prohibited or permitted by this Easement. Certain of these uses, where specifically indicatcd, require noticc to or approval from the Trust, or both, according to the procedures described in 5 Exhibit B —Lower Potato Bill Conservation Easement Sections 10 and 11 herein. Any other activities that are inconsistent with the Ptupose of this Easement or with preservation and protection of the Conservation Values are prohibited. Trust's prior notice and approval is required for uses not expressly described herein when there is a question as to consistency with the preservation and protection of the Conservation Values. . 7.1. Division of Property. Grantor may not divide or subdividc (including de facto subdivision) the Property into more than one parcel of land. At all times the Property shall be owned as a single parcel subject to this Easement. Ownership of the single parcel by joint tenancy or tenancy in common is permitted;however,actions to partition or condominiumize the Properiy are prohibited. 7.2. Development Rights and Improvements. The construction, improvement, placement,or replacemont of any improvements(defined as buildings, structures, mobile homes or other physical, human-introduced development of or on the Property, including landscaping, fences, wells, roads, septic systems, utilities, etc.) are prohibited on the Property, except as follows: A. Fencin . Grantor may repair and replace existing fences, provided any replacement fencing in wildlife migration corridors is consistent with then-current CPW guidelines for fencing in wildlife migration areas so as to permit the movement of wildlife across the Property. G�rantor may construct new fences needed for agricultural purposes (e.g. cattle and range management),provided such new fencing is consistent with CPW fencing guidelines; B. Roads. There are no improved roads on the Property, and construction of improved roads is prohibited. Unimproved, primitive roads and tracks (meaning not graded, surfaced, cut or filled) may be maintained and dcveloped on the Property as necessa�y for agriculture and property maintenance in a manner that minimizes erosion,soil compaction,and disturbance to sensitive ecosystems and habitat. Paving of roads is prohibited. Limited grading or surfacing of unimproved roads or tracks is permitted only as nec�ssary for agriculture or property maintenance upon appraval of the Trust; C. Foot,�,aths and ATV Trails. The development and use of footpaths and other unimproved, low-impact (as dofined in Section 21.1) natural-surfaced trails not to exceed.three feet in width is permitted for agriculture, property maintenance and private,non-motorized recreation in a manner that minimizes erosion and disturbance to sensitive ecosystems and habitat; D. Ponds �nd Ag�rjcultura� Water Sources. There is no irrigation infrastructu�c now located on the Pmperty, however, construction or development of imgation ponds or stock ponds, water wells (for which there is an existing permit) end pumps, together with other agricultural water sources such �s stock watering tanks, wildlife guzzlcrs (which collect rain, snow snd runoff to provide a water source for wildlife),and low- impact or portable water storage tanks are permitted on the Property to support 6 Ezhibit B —Lower Potato Bill Conservation Easement agricuitural and wildlife usc of thc Property in a mann�r not damaging to the Conservation Values; E. Utilities and Other Technolostv. Grants of easements and rights-of-way for, and the installation of utilities, utility lines, pipelines, communications technologics and all relateci infrastructure (collectively "utilities") is prohibited without prior approval from the Trust,except that: a. Agricultural water wells and pumps are permitted in accordance with Section 7.2.D,above; b. Low-impact(as defincd in Section 21.I)utilities, such as fence-mounted sotar panels, or solar or wind-powered pumps may be located on the Property without further notice to or approval from the Trust. Grantor sha11 promptly reseed and restore any surface impacts that result from the instaltation or maintenance of any permitted utilities or related improvements to the Property to as close to the Property's original condiiion as possible within three months,weather permitting,or an altemate time period approved by the Trust. . 7.3. Resource Msnagement and Use. Grantor recognizes tho importance of good resource management and stewardship to preserve and protect the Conservation Values. Accordingly, Grantor agrees not to altcr thc topography of the Property through placement or removal of soil,gravel, land fill, or other materials nor to impair the relatively natural habitat for native plants, wildlife, or simil�r ecosystems within and upon the Property, oxcept: (a) as necessary in emergencies, including for fire control and prevention; (b) for weed control as described in subsection F, below; (c) as approved by the Trust and any required permitting agencies for habitat enhancement or restoration purposes; (d) as specifically permitted for improvements describod in Section 7.2 above; and(e)as necessary for the uses described below, which shall be conducted in a manner not inconsistent with the preservation and protection of the Conservation Values: A. A�,riculture and Livestock Grazina. Grazing of horses and livestock and leasing of grazing rights is permitted on the Property in a manner that does not result in degradation of wildlife habitat, or significant soil erosion or low soil quality as determined by the Natural Resource Conservation Service or its successor organiz�tion("NRCS"). Tfie following agricultural and livcstock husbandry practices are sp�cifically ptohibited: a. Intensive growth livestock farms or commercial feed lots,defined as confined areas or facilities on the Property, within which the land is nat gr�zcd or croppal annual[y, for purposcs of extended feeding and finishing of large numbers of livestock for commercial purposes; b. Grazing or kceping of domestic sheep on the Property withoat CPW consent; c. Clearing or conversion of native rangel�nd or habitat to croate new pasturos without approval of the Trust in consult�tion with CPW; 7 Ezhibit B —Lower Potato Bill Conservation Easement d. Tilled cultivation of crops,including tree farms or sod farms; e. Fish hatcheries or other aquaculture;and f. Commercial horse boarding. B. Use of Vehicles Off-Road.Grantor's private use of vehicles off road or o�=trail is permitted only in a low-impact manner that does not result in erosion o� or significant compaction to, the Property's soils, harassment of wildlife, or damage to the natural vegetation, ecosystems or scenic values of the Property. Commercial, recreational, or public use of vehicles off roads is prohibited on the Property, except for private or guided hunting purposes permitted by Grantor,as described below; C. unt n . Hunting and the leasing of hunting rights on the Property is permitted in accordance with all applicable laws, and may include guided hunting for youth, veterans and handicapped indiyiduais per agreement with CPW; D. Trash. Grantor shall not dump, permanently accumulate, or dispose of trash, garbagc, or other hazardous or unsightly refuse on the Property, except for agricultural by products and compostable matter(including chipped,diseased or dead ' wood resulting from habitat improvement or fire controi) produced or used on the Properiy; E. Habitat �d Ve,getation Management. Grantor may cut, thin or burn trees and native vegctatian on the Pmp�rty on a limited and localized basis to control weeds, insects,wildfire danger and disease; to prevent personal injury and property damage; � for domestic and agricultutal uses on the Property such as firewood collection and construcrion of permitted fences;or as approved by the Trust to otherwise maintain or enhance the chara�ot�r and health of the wildlife habitat or �cosystem, which may be subject to a management plan prepared in cooperation with the Trust as deemed necessary in the sole discretion of the Trust; F. Weed Control. Grantor agrees to control noxious weeds and invasive plant species on the Property in accordance with the Colorado Noxious Weed Act(January � 23, 2006), or as such Act may be amended, and other applicable laws (as defined in Section 21.1), and shall not intentionally introduce noxious weeds or other invasive sp�ies to the Property; G. ' erals In accordance with IRC §170(h) and §1.170A-14(g) of the Treasury Regulations, exploration for, extractian or rcmoval of any mineral resource (which may include, but is not limited to, sand, graavel,rock,soil,peat,coal, uranium, oil,oil shalo, natural gas or other hydracarbons)by any surface mining method or any other method in'a manner inconsistent with the Purposes of this Easement is prohibited.on the Property. Because Grantor does not own all of the mineral rights assoeiated with the Property,a mineral remoteness letter,on file with the Trust,was propared by RaTe F,arth Scicnce LLC on � �� ,2013, finding that the likelihood of surface mining on the Property is so remote as to be negligible, in compliance with IRC §170(h) and Treas.Reg. §1.170A-14(g). 8 . Ezhibit B —Lower Potato Bill Conservation Easement In order to satisfy the intent of the above paragraph,Grantor may not separate or transfer Grantor's portion of the mineral rights from the Property,nor engage in,lease ar otherwise pemut the development of mineral rights on or under the Property (via leases, surface use agreements, non-surface use agreements, damage agreements, rights-of-way, or other easements or agreements related to mineral development (collectively, "mineral agreements")) except as may ix required by third party mineral interest holders and in compliance with the following: a. Trust's Participatfon fn Furure Mineral Agreements. Grantor shall notify the Trust prior to entering into any mineral agreement with a third party minera) � interest holder,and the Trust shall have the samc legal rights as Grantor to review all proposed mineral agreemcnts prior to execution, and to participate in negotiations therefore in order to direct the future development of mineral resources to occur only by those methods having no more than limited, localized, temporary and reclaimable impacts on the Property, which impacts must not be irremediably destructive of the Conservation Values in accordance with IRC §170(h)(5), (6) and Treas. Reg. §1.170A-14(gx4}. The Trust's participation may not deny any third party's ultimate right to dcvelop minerals underlying the Property, and the Trust shall claim no rights to proceeds or royalties from such developmen�Grantor retains sole execution authority for any mineral agreements or transfcr deeds; however, failure to notice the Trust prior to entering into any mineral agreement or transfer may result in a$5000 fine payable to.the Trust,in addition to other remedies available under law. All mineral agreements entered into after this date shall,at a minimum,include the following: 1) Reference to this Easement and summary of the Conservation Values; 2) Acknowledgement that the agreement is subordinate and subject to the terms of this Easement; 3) Non-surface occupancy methods of mineral development are strongly preferred, and only the minitnum structures, infrastructure, and other disturbance or impacts to the Property shall be permitted as reasonably necessary to mineral development; 4) All impacted sites associated with mineral devclopment shall be �contoured and revegetated, and any damage to the Property or its � Conservation Values restored,to as close to the Property's original state as possible upon completion of active drilling or mineral development operations; any structures roquired to remain upon the Property for more than one year shall be concealed from public view and constructed and maintained in a manner not damaging to the Conservation Values. b. Current Mineral Leases. There are no active oil and gas or other mineral leases on or affecting the Property at this time. 9 ___..� �.:.....,.�._��.. Exhibit B --Lower Potato Bill Conservation Easement H. Water Resources. Grantor shall not divert, dam, pollute, dredge, intentionally destabiliz� or degrade Potato Bill Creek, or other naturally-occurring streams, springs, designated wetlands or other surface or subsurface watcr features that may occur on the Property, except as approved by the Trust, aad except for any work or� structures deemed necessary by firarrtor, in consultation with CPW or other agency qualified at the time to oversee such work, to enhance, restore or control erosion or siltation of water resources on the Property in compliance with all applicable laws(as defined in Section 21.1). The c�nstruction, installation, maintenance, improvement and replacement of ponds, wetlands, and irrigation structures (including ditches, pipelines,headgates and related equipment)are permittul for agricultural purposes or � the enhancement of wildlife habitat, provided such activities are in compliance with applicable laws. Soil, sand, rock and gravel produced during the excavation or construction of permitted ditches or ponds may be used or relocated on the Property in a manner not inconsistent with the preservation and protection of thc Conservation Values; I. Water Ri�. There are no water rights included in or �ncumbered by this Easement; J. Commercial artd Industrial Activities.Grantor shall not conduct industrial activity or commercial recreational activity on the Property, except for guided hunting activities that may be approved by CPW and leasing of hunting rights; K. Recrearion. Private, low-impact recreational uses such as hiking, horseback riding,cross-country skiing,hunting,fishing and short-term camping are permitted on the Property, provided that recreational trails are limited pursuant to Section 7.2.B herein, and that any private recreational easements or agreements with neighboring Iandowners that predate the grant of this Eascment shall be pormitted. 8. No PirsLiC AccESs Except by the terms of this Easement,including Section 7.3.C,Hunting,Grantor shall not afford the public any more than visual access to any portion of the Properry, although Grantor may permit guests or invitees to access the Property on such terms and conditions as it deems appropriate, provided that such access is consistent with the terms of this Essement and preservation and protection of the Conservation Vaiues. 9. REPRESENTATIONS AND WARRANTIES Grantor represents and warrants that, after reasonable investigation and to the best of its actual knowledge: • 9.1. Except for fuels customarily used or transported in connection with agricultural activities; no substance dtfined, listed, or otherwise classified pursuant to any federal, state, or local law,regulation,or requir�ment as hazardous,toxic,polluting,or otherwise or thre�tening to human health or the environment exists or has been used or r�leascd on the Property; 10 Eghibit B —Lower Potato Bill Conservation Easement 9.2. There are not now any underground storage tanks located on thc Property, and no underground storage tanks h�ve been removod from the Property in a manner not in compliance with applicable laws,regulations,and requirements; 9.3. Grantof and the Property are in compliance with all federal, state, and local laws, regulations, and requirements applicablc to the Property artd its use; and there is no existing, or pending litigation in any way af�'ecting,involving,or relating to the Property; 9.4. Grantor has good and sufficient title to the Property and has lawful suthority to grant and convey the Easement, that any mortgages or liens on the Property are subordinate to the terms of this Easement, and that Grantor shall warrant and forever defend the title to the Easement against all and every person or persons lawfully claiming by, through or� under Grantor, the wholc or any part thereof, except for rights-of-way, easements, restrictions, covenants and mineral reservations of record. 10. NOTICE OF INTENTION TO UNDERTAKE CERTATN PERMITTED ACTIONS The purpose of requiring Grantor to notify the Trust before undertaking certain activities or uses, as specifically identified in Section 7 or elsewhere herein, is to afford the Trust an opportunity to update its records and, if approval is required pursuant to Section 11 below, to ensure that the activities or uses in question are not inconsistent with the terms of this Easemen� Grantor shall also notice Trust and seek its approval,pursuant to Section 11 below, for proposc;d activities or uses when there is a question as to consistency with the pr�servation and protcction of the Conservation Values. Whenever notice and the Tn.ist's approva! are required, Grantor shall notify the Trust in writing not less than 45 days prior to the date Grantor intends to undertake the activity or use in question, unless this Easem�nt provides otherwise, and describe the nature, scope, dcsign, locarion, timetable, and any other material aspect of the proposed activity or use in sufficient detail to permit the Trust to make an informed judgment as to the • activity or uso's consistency with the terms of this Easement and the preservation and pmtection of the Conservation Values. Whenever notice is required without the Trust's approval, Grantor shatl notify ihe Trust in writing not less than 14 days in advance of the proposed activity or use, unless the activity involves emergency activities,such as fite fighting, in which case no notice is required. 11. THE TRUST'S APPROVAL Whenever this Easement requires that Grantor obtain the Trust's approval for any activity or use of the Property, or if Granior desires approval for any activity or use of the Property not specifically addressed henin, such approval shall be given in the Trust's sole discretion, according to whether the Trust determines that such activity or use of the Property is not inconsistent witli the preservation and protection of thc Conservation Values. Grantor has the burden to prove that Cirantor's proposed uses are not inconsistent with the preservation and protection of the Conservation Values. Where the TrusYs approval is required, the Trust shall � grant or withhold its approv�l in writing within 14 days of receipt of Grantor's written notice(as described in Section 10,above)of and request therefor.The Trust's approv�l may be withheld at lI _ e�� ._ Exhibit B —Lower Potato Bill Conservation Easement the TrusYs sole discrotion if the Trust determines that the action as proposed would be incorisistent with the Conservation Values or the purposes or terms of this Easemen� The rcason(s) for such a determination shatl be set forth with specificity by the Trust in a written notice to Grantor. Where a mod�cation of the proposed use or activity by Grantor would render the same not inconsistent with the purposes of the Easement and the Conservation Valu�s, the � Teust may specify, in such written notice to Grantor, such modif cations to render approval appropriate. 12. TRUST'S REMEDIES:ENFORCEMENT The Trust shall have the right to prevent and correct or require correction of violations of the terms and purposes of this Easement. The Trust is not responsible for monutoring for or enforcing violations of any applicable laws (as defined in Section 21.1), permits or third party contracts af�ecting the Property now or in the future, except to the degree that any such violations may damage the Conservation Values, violate this Easement, or be otherwise inconsistent with the Purposes or terms of this Easement. If the Trust finds what it believes is a violation, or a throat of a violation,the Trust shall notify Grantor of the nature of the alleged violation. Upon receipt of this norice, Grantor shall immediately disconrinue any activity that could increase or expand the alleged violation and shall either: (a) restore the Property within 60 days as is best possible, subject to weather conditions and season, to its condition prior to the violation in accordance with a plan approved by the Tnis�, or if immediate restoration is not possible, Grantor sh�ll submit such plan to the Trust within 60 days; or (b) provide a written explanation to the Trust of the reason why the alleged violation should be permitted. If the Trust is not satisfied with Grantor's written explanation, the Parties agree to meet as soon as possible to resolve this difference. If a resolution of this difference cannot be achieved at the meeting, the Parties agrec to attempt to resolve the dispute pursuant to Section 12.1,below. At any time, including if Grantor does not immcdiately discontinue any activity that could increase or expand tho alleged viotation while the P�utics are attempting to rosolve the alleged violation,or if the Trust betieves an ongoing, imminent,or proposed activity violates the Easement, the Ttust may, upon an advanced good faith attempt to contact Grantor verbatly or electronically, take immediate, appropriate legal action to stop the activity, without prior notice to Grantor; without waiting for tt�e period provided for cure to expire; and without waiting for the 60-day mediation period to expire. The Trust may bcing sn action at law or in equity, ex parte as necessary, in.a court of jurisdiction, to enforce the terms of this Easement and to enjoin by temporary or permanent injunction a violation, which may require restoration of the Property to the condition that existed prior to the violation. The Tn�st's remedies described herein shall be in addition to all remedies now or hercafter existing at law or in equity, and shall include, without limitation, the right to recover damages for violation of the terms of this Easement or injury to the Canservaiion Velues including damages for the loss of scenic, aesthetic, or environment�l values. Without limiting Crr�ntor's liability therefore, the Trust, in its sole discretion, may apply any damages recovered to the cost of undertaking any restorative, remedial,correcdve action on the Property. 12 Ezhibit B —Lower Potato Bill Conservation Easement Enforcemcnt of the terms of this Easement sha11 be at the sole discretion of the Trust,and any forbearance by the Trust to exercise its rights under this Easement in the�vent of any breach of any term of this Easement by Gtantor shall not be deemed or construed to be a waiver by the Trust of such term or any subsequent breach of the same or any other term of this Easement or of any of the Trust's rights under this Easement. No delay or omission by the Trust in the exercise of any right or remedy upon any breach by Grantor shall impair such right or remedy or be constcued as a waiver. The failure of the Trust to discover a violation or to take immediate legal action shall not bar the Trust from doing so within four years from the date upon which the violation is discovered. All reasonable costs incurred by the Trust in enforcing the terms of this Easement, including, without limitation, costs and expenses of pursuing legal action and reasonable attorney's fees, shall be paid to the Trust by Grantor,and any costs of restoration necessitaied by Grantor's violation of the terms of this Easement, shall be borne by Grantor, unless: (1) a court finds that the Trust actcd in bad faith in seeking enforcement thereof, in which case the Trust shall pay Grantor's court-awarded costs and fecs, or (2) if Crrantor ultimatoly prevails in a judieial enforcement action,the Trust shall pay its own costs and fees. 12.1. Mediation. If a dispute ariscs between the Partios conceming the consistency of any proposed use or activity with the terms of this Easement, and Grantor agrees not to proceed with the use or activity pending rosolution of the dispute, either Party may refer the dispute to mediation by written r�quest upon the other. Within 10 days of th� receipt of such request,the Parties shail select a trained and impactial mediator with experience in easements and other land preservation tools. If the Parties are unable to agree on a mediator, then the Parties shall each select a mediator with experience in conservation easements and other land preservation tools, and those two mediators shall select a mediator who shall alone mediatc the dispute. Mediation � shall then proceed in accordance with the following guidelines: A. Pu sc. The purpose of the mediation is to: (a)promote discussion between the Parties; (b) assist the Pazties to develop �nd exchange pectinent information concerning the issues ir�dispute; and(c)assist the Partios to develop proposals which will enabla 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. �'articipation. The mediator may meet with the Parties and their counsel jointly or ex parte. T'he Parties agree that they will participate in the mediation process in good faith and expoditiously, except in cases when the Trust believes that Conservation Vaiues are continuing to be hazrned during the mediation proeess, in which case the Tnist can suspcnd its involvement in the mediation to remedy this threat of ongoing viotation. Representatives of the Parties with settlement authority will attend mediation sessions as required by the mediator; C. Co�d�ntialit�: All information presented to the mediatoz shall be deemed confidential and sha11 be disclosed by the mediator only with the consent of the ' 13 Exhibit B —Lower Potato Bill Conservation Easement Parties or their respective counsel. The mediator shall not be subject to sabpoena by any Party in any subsec�uent litigation; D. Time Period and Fees. Neither Party shall be obligated to continue the mediation process bcyond a period of 60 days from the date of receipt of the initial request or if the mediator concludes that there is no reasonable likelihood that continuing mediation will result in a mutually agreeable resolution of the dispute. The Parti�s shall equally share and each bear 50%of thc mediator's fees. 13. CosTS,LuB�LTC�ES,TAxES,A1vD ENVixONNtEN'rA�.Co1�LIA1�ICE 13.I. Costs, Legal Requirements and Liabilities. Grantor retains ail responsibilities and obligations and shall beaz all costs and iiabilities of any kind related to the ownorship, operation,upkeep, and maintenance of the�Property, including the payment of property and othcr taxes related to the Property, and maintenance of liability insurance coverage. Grantor shall make best e�'orts to keep the Property free of any liens ariseng out of any work performed for, matcrials furnished to, or obligations incurred by Grantor. Nothing in this Easement shall be construed or interpreted as prohibiting Grantor from obtaining loans secured by deeds of taust encumbering the Property, providcd any such deeds of trust aro subordinate to this Easement, and shall encumber the entire Property; 13.2. ControL Nothing in this Easement shall be construed as giving.rise, in the absence of�judicial decree,to any right or ability of the Trust to exercise physical or managerial control over the day-to-day oporations of the Property, or over any of Grantor's activities on the Property, or otherwise to become an operator with respect to the Property within the meaning of The.Comprehensive Environmental Response, Compcnsarion, and Liability Act of 1980, as amended("CERCLA"),and any Co[orado state Iaw counterpart; 13.3. Hold Harmiess. Grantor shall hold harmtess, indemnify and defend the Trust and its members, directors, officers, employees, agents, and contractors ana the heirs, personal representatives, succcssors, and 8ssigns of each of them (collectively, the "Trust Parties") from and against all liabilities including, without limitation, court awarded third-party attorneys' fees, arising from or in any way connected with: (a) injury to or the death of any person, or physical damage to any property,resulting from any act, omission, condition,or other matter related to or occurring on or about the Property,regardless of cause,unless due solely to the gross negligence or intentional act of any of the Trust Parties; (b) thc violation or alleged violation of, or other failure to comply with, any state, federal, or local law, regulation, or requirem�nt, including, without limitation, CERCLA, by any person other than any of the Trust Parties, in any way affecting, involving, or relating to the Property; (c) the presence or release of hazardous or toxic substances in, on, from, or under the Property at any time, of�ny substance now or hereafter def ned, listed, or oth�rwise classified pursuant to any federal, state, or local law, rogulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way hatmful or thneatoning to human heatth or the environment, unless caused solely by any of the Trust Partics; (d)paymcnt of taxes imposed upon or incurred by the Property as a result of this Easement, inciuding property taxcs and the sale of income tax credits acquired as a result of this Easement; (e)tax benefits or consequences of any kind which resuli or do not result 14 Ezhibit B —Lower Potato Bill Conservation Easement from entering into this Easement; and (� the obligations, covenants, representations, and warranties described herein; 13.4. Waiver of Certain Defenses. No action shall be commenced or maintained to enforce the terms of any building restriction described in this Easement, or to compel the removal of any building or improvement, unless said action is commenced within four years from the daxe of discovery of the violation for which the action is sought to be brought or maintained. To the extent that any defense available to Grantor pursuant to C.R.S. §38-41-119 is inconsistent with the foregoing, Grantor waives that defense. Grantor waives the defenses of laches, estoppel and prescription with regard to the enforcement of all other terms of this Easement;and 13.5. Acts Beyond Grantor's Control. Nothing contained in this F�sement shall be construcd to entitle the Trust to bring any action against Grantor for any injury to or change in the Property resulting from causes beyond Grantor's control {including wiid fire, landslides and avalanches)or from any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Property resulting from such causes. Grantor is not responsible for acts of third parties not authorized to access the Property,but shall be responsible for those third parties, including guests or invit�es,authorized by Grantor to access the Property. The Trust retains the right to enforce against third parties for violations of the Easement or damage to the Property pursuant to Section 5.6 herein. 14. EXTINGUISftMENT AND CONDEI4II�IATION 14.1. Extinguishment. The Parties agree that any changes in the economic viability of the uses permitted or prohibited by this Eascment, or changes to neighboring land and its use shall not be deemed circumstances justifying the termination or extinguishmcnt of the Easement. In addition, the inability of Grantor, or Cnantor's heirs, successors or assigns,to implement any or all of the uses permitted under this Easement shall not impair the validity of the Easement, or be considered grounds for termination or extinguishment of this Easement. If circumstances arise in the future that render the purposcs of this Easement impossible to accomplish, the Easement can only be terminated or extinguished, in whole or in part, by judicial proceedings in a court of competent jurisdiction after the court has cxplored all options for importing other purposes for the Easement pursuant tv the cy pres doctrine. Each Party shall promptly notify the othor whon it first learns of such circumst�nces. The amount of the proceeds to which the Trust shalt be entitled, after the satisfaction of prior claims, from any sale, exchange, or involuntary conversion of all or any portion of the Property subsequent to such termination, shall be determined, unless otherwise provided by Colorado law at the time, in accordance with the Procecds paragraph below,and such procceds shall be used by the Trust in a manner consistent with the conservation purposes of the original Easement contribution, as required by§1.170A-14(gx6)(i)of Treasury Regulations. 14.2. Condemnation. If all or any part of the Propecty is taken by exercisc of the power of cminent domain or acquired by purchase in lieu of condemnation,-whether by public, corporate,or other authority,so as to terminate the Eas�ment in whole or in part,Grantor and the 15 Ezhibit B —Lower Potato Bill Conservation Easement Trust shall act jointly to recover the fuli value of the interests in the Property subject to the taking or in-lieu purchase and atl damages resulting therefrom. A!1 expenses reasonably incurred by Grantor and the Trust in connection witti the taking or in-lieu purchase shall be paid out of the amount recovered. The Trust's share of the balance of the amount recovered shall be determined by multiplying that balance by the percentage set forth in Proceeds paragraph below. 14.3. Proceeds. Grantor and the Tn:st siipulate that as of the date of this Easement, they are each vested with a real property interest in the Property. The P�ties further stipulate that the Trust's interest in the Easement has a value of 15 percent(%)of the fair market value of the Property from this date forward, and such percentage interest shall remain constant in relation to any future fair market value of the Property. Such percentago interest shall be used only for determining the Trust's proportion of proceeds fro� any payment of damagcs or action resulting from circumstances described in the Extinguishment and Condemnation paragraphs above. The Parties agree that the value of any impmvements to the Property made by Grantor after the date of this Easemcnt is reserved to Grantor. 15. ASSIGNMENT OF EASEMENT In the event the Trust is no longer able to carry out its duties and abligations under this Easement, or if circumstances change so that another similaz organization is better able to carcy out �uch duties and obligations, the Trust may, upon no less than 60 days prior notification to Grantor,elect to transfer the Easement and assign its rights and obligations under this Easement to either. (1) Colorado Open Lands, (2) the Colorado Cattlemen's Agricultural Land Trust, (3) Colorado Parks and Wildlife,or(4)a qualified non-governmental land conservation organization charged with a mission similar to that of the Trust; provided however,that any organization or entity sclected to accept this Easement is, at the time of transfer: (a) willing and able to accept the transfcr;(b)a qualified organization under §170(h)of the Internal Rev�nue Code of 1986,as amended (or any successor provision then applicable), and its applicable regulations; and (c) authorized to acquire and ho[d conservation easemcnts under Cotorado law. Th� Trust shall consult with Grantor regarding any selection of a qualified assignee of the Easement, but shall ultimately have the right to select an organization as defined herein that is willing, able and qualified to the hold the Easement(the"Assignee"), and to notify Grantor of its selection. As a condition of such transfer,the Trust shall require the Assignee to expressly agree, in writing, to carry out and uphold the purposes of the Easement and the Conservation Vatues and otherwise assum�al! of the obligations and liabilities of the Trust set forth herein or created hereby. After such trarisfer,the Trust shall have no further obligation or liability under this Easement. Should the Trust be unable to assign the Easement according to this procedure, a court with competent jurisdiction shall assign the Easement. 16. SUBSEQUENT T12ANSFERS OF PROPERTY � Grantor agrees to notify any party who may purchase, lease,or otherwise hold interest in this Property of the existence and terms of this Eascment,and to provide a copy of tho F.asement and the Baseline Documentation to such party if requested. Grantor further agrees to give notice to the Trust of the trsnsfer of any such interest prior to transfer. The Trust shall bo available for and welcome the opportunity to meet with any prospective buyers or transferees of the Pmperiy I6 _ �_�._.��...w._� _..._{ __.� .'�__,..F , Exhibit B --Lower Potato Bill Conservation Easement to explain the terms of this Easement to potential new owners prior to or after sale closing, or to answer any questions or concems related to .this Easement, or any of its supporting documentation,including the Baseline Documentation. Tn addition, at any time Grantor transfers the Property to a third party, includin,g all subsequent transfers, that party shall pay $100.0(1 to the Trust to cover administrative costs associated with the transfcr, as well as to put the third party recipient on notice of the terms of this Easement. This paymcnt is cxempt from transfer fee restrictions pf C.R.S. §38-35-127 because it does not affect residential real property,and only at�ects agricultural land. The failure of Grantor to perform any act required by this paragraph shall not impair the validity of this Easement or limit its enforceability in any way. 17. NOTICES Any communication that either Party desires or is required to give to the other shall be in writing and served personally or sent by first class mail,postage prepaid,addressed as follows or to such other address as eithcr party from time to time shall designate by written notice to the other: To Grantor: Ranch N,LLC c%Gideon Kaufman 315 Hyman Avenue,Suite 305 Aspen,CO 81611 To the Trust: Aspon Vallcy Land Trust 320 Main Street;Suite 204 Carbondale,CO 81623 18. RECOxn�T[ON This instrument shall bc held in escrow to be recorded immediately after completion of the SuteylTwo Shces administrative land exchange, and after the �xpiration of all pmtests, challenges or stay periods, in the official records of Pitkin County, Colorado and may be re- recorded at any time as may be required to preserve its rights in this Easement. 19.t�Nn1►�N'r If circumstanees arise under which an amendment to this Fasement would be appropriate to promote the purposes of the Easement, Grantor and the Trust may jointly amend this F.asement. However, neither Grantor nor the Trust is under obligation to amend this F.�sement, and the Trust may decline any amendment in its sole discretion according to then-cuncnt Trust policies, which shsll be made �vailable to Grantor upon requost: Any amendment must be consistent with, and protect and preserve, the puiposes-of the Easemeat and the Conservation Values and may not affect the Easement's perpetual duration. Any amendment must be in writing, signcd by all the Parties, und recordod in the records of the Clerk and Recorder of the appropriate Colorada County. Corrections to correct factual mistakes or typographical or clerical 17 y.,�,=� . _ � Eachibit B --Lower Potato Bill Conservation Easement errors may be made at the discretion of the Trust. No amendment shall be allowed that affects th�qualification of this Easemont or the status of the Trust under any applicable laws, including C.R.S. §§38-30.5-101 et seq., or IRC §170(h) or arry regulations promulgated thereunder. No amendment shall be permitted that will confer a private benefit to Grantor or any other individual or entity(see IRS Reg. 1.170A-14(hx3xi))greater than the benefit to the general public,or that will result in private inurement to a Board member, staff or contract employee of the Trust(seo IRS Reg. 1.501(cx3)-1(cx2)). 20. SUBORDINATION The Property is not subject to any mortgages or liens. 21. GENERAL PROVISIONS 21.1. Definitions. A. The terms "Grantor" and "the Tnist," wherever used herein, and any pronouns used in plaa of those terms, shall refer to, respectively, Crrantor and its heirs, personal representatives, executors, adnninistrators, successors and assigns, and the Trust and its successors and assigns; B. The terms "Easement", "conservation easement", "Decd of Conservation Easement", and "Deed of Conscrvation Easement in gross"refer to the immediately vested interest in real property defined by Colorado Revised Statutes §§38-30.5-101 et seq., and this legal document, consisting of the rights and restrictions enumerated herein,by which said E�sement is granted; C. A„pplicable Laws. Thc term "applicable laws"refers to all relevant federal, state, and local statutes, ordinances,judicial decisions, executive orders, codes, pormits or regulations having the force and effect of law that have bearing on or may control certain uses allowed by the Easement; D. Low-Impact. The term "1ow-impact" refers to activities or improvements whose location, use and construction have little or no impact on the Property and do not negatively impact the Conservation Values: 21.2. Controlliug Law. The interpretation and performance of this Easement shall be govemed by the laws of the State of Colorado; 213. Liberal Construction. This Eascment shall be liberally construed in favor of the grant to effect the purposes of the Easement and the policy and purposc of C.R.S. §38-30.5-101 et seq. If any provision in this instrument is found to be ambiguous,an interpretation consistent with ensuring continuation of the purposes of the Easement a.nd the preservation and protection of the Conservstion Values that would render the provision v�lid shall be favored over �ny interpretation that would render it invalid. The common law rules of disfavoring restrictions on the use of real pmperty and construing restrictions in favor of the fr�c and unrestricted usc of real 18 � �_� Exhibit B —Lower Potato Bill Conservation Easement property shall not apply to interprctations of this Fasement or to disputes between the Parties concerning the meaning of particular provisions of ttiis Easement; 21.4. 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 shall be decmcd severable and remain in full force and effect; 21.5. Entire Agreement. This instrument sets forth the entire agreement between the Parties with respect to the Easement and supersedes all prior discussions, negotiations, understandings,or agrcements relating to the Easement,all of which are merged herein; 21.6. No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Grantor's title in any respect; 21.7. Joint and Severa! Obligation. The obligations imposed by this Easement upon Grantor shall be joint and several. If the Property's ownership, now or in the future, is by a single entity consisting of multiple parties including shareholdcrs, partners, or members, that entity is required to notify its shareholders, partners, or members of the entity's and their individual rights and rosponsibilities,including any monotary or other obligations set forth in this Easement. Grantor shall provide a copy of such notice at any time upon the Tnist's request; 21.8. Successors. The covenants, terms, conditions, and restrictions of this Easement shall be binding upon, and inure to tho benefit of, the Partics hereto and Grantor's rospective personal representatives, heirs, succossors, transferces, and assigns, and the Trust's successors, transferees, and assigns, and shall continue as a scrvitude running in perpetuity with the Properly; 21.9. Termination of Rights and Obligations. A Party's rights and obligations under this Easement terminate upon transfer of the Party's interest in the Easement or the Property, unless the transfercc assumcs such obligations, except that liability for acts or omissions occurring prior to transfer shall survive transfer; 21.10. 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; 21.11. Counterparts. The Parties may execute this insttument in two or more counterparts,which shall, in the aggregate,be signed by all the Parties;each counterpart shall be dcemed an original instrument as against any Party who has signed it. In the event of any disparity between the counterparts produced,the recorded counterpart shall be controlling; 21.12. Merger. Unless the Parties expressly state that they intend a merger of estatcs or interests to occur,no merger shall be deemed to have occurre,d hereunder or under any document executed in the future affecting this Easement; 19 . ....�._......_.�:r�lc _ ._ ....�wrrct�siY�....:�... , ... Exhibit B —Lower Potato BilI Conservation Easement 21.13. Authority to Eaecute. Each party represents to the other that such party has full power and authority to execute and deliver this Deed of Conservation Easement,and perform its obligations under this Easement, that the individual c�cecuting this Easement on behalf of said party is fully empowered arid authoriud to do so, and that this Fasement constitutes a valid and legally binding obligation of said party enforceable against said party in accordance with its terms;and 21.14. No T6ird Party Beneficiaries. This Fasement is entered into by and between Grantor and the Trust with the intent that thero are no intended third party beneficiaries that have the right or obligation to enforce the terms and provisions of this Easement.No person or entity, other than the Grantor or the Trust, shall have standing to enforce, nor the right or obligation to enforce,the terms and provisions of this Easement or to otherwise commence or interven�in any lawsuit pertaining to this Easement. IN WITNESS WHEREOF, Grantor and the Trust have executcd this Deed of Conservation Easement as of the date first written above. (signatures on following pages) 20 _ � �, Ezhibit B —Lower Potato Bill Conservation Easement GRANTOR: 2343 COUNTY ROAD,LLC, a Colorado limited liability company By: Name: Title: STATE OF ) )ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 201 l,by as of 2343 COUNTY ROAD,LLC,a Colorado limited liability company,as Grantor. WITNESS my hand and official seal. [SEAL) Notary Public My commission expires: 21 � ..�.-_�� W Ezhibit B —Lower Potato Bill Conservation Easement ACCEPTED by the TRUST: ASPEN VALLEY LAND TRLTST, a Colorado nonprofit corporation By: Martha Cochran,Exccutive Director STATE OF COLORA,DO ) )ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2011,by Martha Cochran as Executive Director of ASPEN VALLEY LAND TRUST,a Colorado nonprofit corporation. WITNESS my hand and ot�icial seal. [SEAL] Notary Public My commission expires: 22 �„n _ �. ��„�.��,.�. _. _ _,__ . Exhibit B —Lower Potato Bill Conservation Easement EXHIBIT A Legal Description of Property 23 Exhibit B —Lower Potato Bill Conservation Easement EXHIBIT B Map of Property 24 w�swi�lww�el�e51MAMAAeM1iNYIIIAitlIIlYIWIfW/IOIiY � . .____ ._,,,,W.,�_:,�..�-., ._._.... . Eghibit B —Upper Pota�o Bill Conservation Easement NOTICE TO TITLE COMPANY: This Deed of Conservation Easement in gross requires one- hundred dollars ($100.00)bC paid to Aspen Valley Land Tnist or its successor organization by the recipient at the time of every transfer of this Property, as described in Section 16. This payment is exempt from the transfer fee restrictians contained within C.R.S.38-35-127. DEED OF CONSERVATION EASEMENT IN GROSS Two Shoes Ranch Ill—Upper Potato Bill Pareel Pitkin County THIS DEED OF CONSERVATION EASEMENT IN GROSS ("EasemenY') is granted this � day of , , by RANCH III LLC, a Colorado limited liability company("Grantor"), to and for the benefit of ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation having offices at 320 Main Str�et, Suite 204,Catbondale, Colorado 81623 (the"Trus�')(collectively,the"Parties"). The foliowing exhibits are attached hereto and incorporated in this Easement by reference: Exhibit A:Property Legal Description;and Exhibit B:Map of PropeRy. RECITALS WHEREAS, Grantor is the sole owner in fee simple of approximatety 135 acres of real property,more or less, located near the Town of Carbondale north of Potato Bill Creek in Pitkin County,State of Colorado,more particularly described in Exhibit A herein(the"Property"); WHEREAS,the Property possesses natural, scenic,open space, agricultural,and wildlife vafues (collectively, "Conservation Values") of impoctance to Grantor, the Trust, and the people of the State of Colorado that are worthy of preservation; WHEREAS, the Conservation Values of the Property are documented more specifically in the Baseline Documtntation, described in Scction 4 herein, and genetally include the fallowing, the protection of which are recogniud under §170(hx4xA) of the Intemal Revenue Code of 1986, as amended ("IRC"), and §1.170A-14(d) of the Treasury Regulations as valid conserv�tion purposes: • �el�tivciv Natural Habitat[§ 1.170A-14(dx3)]. The Property is part of Two Shoes Ranch and provides natural habitat for many wildlife end plant species. It is comprised mostly of pinyon and juniper forests and provides important winter concentration aneas for mule deer. 1 ��, Exhibit B —Upper Potato Bill Conservation Easement • Op�S�[§ 1.170A-14(dX4)]. The Property qualifies as open sQace because it will be preserved for the sccnic enjoyment of the general public and is pursuant to a clearly delineated federal, state or local govemmental conservation policy and will yield a significant public benefit. o Scenic Enio n�ent. The Property lies near National Forest land on the northwestern flanks of Mount Sopris, and as such is part of the scenic rural landscape surrounding Mount Sopris. The Property is also visible from State Highway 133, a heavily used public road close to the Town of Carbondale and part of the West Elk Loop Scenic Byway. o 'culture. The Property is part of a large active ranch, and as such provides rangeland for livestock grazing. o Governmental Policies. Conservation of the Property is promoted by certain state, federal and local governmental policies, laws and regulations, which support conservation of the Property relative to its scenic, wildlife habitat and natural area values,including the following: • The State of Colorado has recognized the importance of private efforts toward the preservation of natural systems in the State by the enactment of Colorado Revised Statutes("C.RS.") §§38-30.5-101 et seq. In addition, 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 arc to.be protected, preserved, enhanced, and managed for the use, benefit, and enjoyment of the people of this state and its visitors" C.R.S. §38-30.5-102 provides for thc 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 . . " o S�gc�ificant Public Benefit. The Property is located in a rural, agricultural, mountainous area of Pitkin County less than four miles frorr�the Town of Carbondale, where there is a current and foresecable trend of developrrient in the generat vicinity of the Property. There is a strong likelihood that devdopmcnt of the Property would compromise its scenic and natural character and the ecological integrity of the area. WHEREAS, the Parties acknowledge that this Essement will be recorded and placed on the Property immediately upon completion of the Sutey/Two Shces administrative land exchange,and after the expiration of all protests,challenges or stay periods; WHEREAS,Grantor intends,as owner of the Property,to convey to the Trust the right to preserve and protect th�Conservation Values in perpetuity and the Trust.agrees by accepting this grant to honor the intentions of Grantor stated hercin�nd to preserve and protect in perpetuity the Conservation Valucs for the benefit of this gencration and the generations to come; 2 _ � .�..�, , ,�....,�.�. _ _ Exhibit B Upper Potato Bill Conservation Easement WI�REAS,the Trust is a charitable organization as describod in IRC §501(cx3),and is a publicly-supported organization.as described in IRC §170(bx1xA) whose primary purpose is to paman�ntly preserve and protect the natural, scenic, agricultural, historical, and open space resources of the greater Roaring Fork and Colorado River Valleys, including the area in which the Propocty is located,and who is a"qualified organization"to do so within the meaning of IRC §170(hx3), possessing the resources and commitrnent to protect and defend the conservation purposes of this grant and Conservation Values identified herein; WHEREAS, the Trust also meets requirements of Colorado law as a qualified recipient for a conservation easement under C.R.S. §38-30.5-104, and is accredited by the Land Trust Accreditation Commission for the term ending August 31,2d13;and WHEREAS, the Board of Directors of the Trust has duly authoriud the Trust's Executive Director or her designee to oxecute and accept this conservation easement on behalf of the Trust. AGREEMENT NOW, THEREFORE, in consideration of the matters above, the mutual covenants, terms, conditions and restrictions containcd herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowlcdged,the Parties agree as follows: 1. Gx�rr[' Grantor hereby vol�ntarily and irrevocably grants and conveys to the Trust a perpetual Conservation Easement in g�oss ("Easement"), pursuant to C.R.S. §§38-30.5-101 et seq., through the terms mutually agrced to in this Easement, consisting of the rights and restrictions enumeratcd herein, .over and across the Property, to hold said Easement unto the Trust and its successors �nd assigns forever. Grantor agrees that the donation of the Easement gives rise to a property right, immediately vested in the Trust, which shall constitute a binding s�rvitude upon the Property and shall be subject to prior reservations, easements, encumbrances and exceptions of record,except as otherwise set forth herein. � 2. PuRrOSEs Pursuant to the terms of C.R.S. §§38-30.5-101 et seq., the pwposcs of the Easement are to assure that the Property will remain forever predominantly in its scenic, natural and open space condition, subject to the uses of the Property permitted hereunder, including ongoing grazing and agricultural use, to protect and preserve tho Conservation Values in perpetuity, to prevent any use of the Propeity that is inconsistent with the preservation and protection of thc Conscrvation Values and, in the event of their degradation or destruction, to resWre such Conservation Values as required herein. The primary puiposes of this Easement are: 1) to preserve and protect important natural habitat; 2)to protect agricultural range land; 3)to protect scenic resources visiblc to the public;4)to prevent residential development on the Property; and 3 ,..,,�,.._...,...__._ _ ��r .�� Exhibit B —Upper Potato Bill Conservation Easement 5) to prevent mineral development of the Property to the degree that Grantor is able. (This paragraph collectively describes the"Purpose,s"of�is Easement) 3. IrrrErrr Subjc;ct to the express reservations and prohibitions deseribed in Section 7 below, the intent of the Parties is to permit all spec�ed uses of the Property and any other uses that are not inconsistent with the preservation and protection of the Consorvation Values as determined by the Trust in its sole discretion. Nothing in this Easement is intendcd to prevont Grantor's�quiet and reasonable onjoyment of the Property, or to compel a specific use of the Property other than the preservation and protection of the Conservation Values. 4. BASELINE DOCUMENTATION The Parties aclrnowledge that a Baseline Documentation of the Conservation Values and relevant features of the Property was prepared on by Colorado Wildlife Science, LLC of Basalt,Colorado,a company familiar with conservation easements,the Property,and the �nvirons, which will be kept on file with the Parties. The Trust and Grantor acknowlalge and agree that by the execution of this Easement,they hereby approve,acknowledge, and accept the Baseline Documentation as an accurate representation of the condition of the Pr'operty at the time of this gi�ant. The Parties agree that the Baseline Documentation is not intendcci to preclude the use of other evidcnce to establish the present condition of the Property should a controversy arise over its use. � 5. RIGHTS OF T�TRUST To fulfill the Purposes of this Easement, Grantor hereby conveys to the Trust a property right and interest in the form of this Easement, which immediately vests with the Trust (as agreed in Section 1 and stipulated in Soction 14.3,herein),and includes the following affirmative rights: 5.1. All development rights deriving from, based upon, or attributable to the Property in any way ("Trust's Development Rights"), except thosc expressly reserved by Grantor in Section 7 herein, and the Parties agree that TrusYs Development Rights shall be held by the Trust in perpetuity in order to fulfill the Purpose of this Easement,and to ensure that such rights are forever released,terminatcd and extinguished as to Grantor. Thc grant of this Easement shall not entitle Grantor to incresse development density on adjaccnt properties owned by Grantor,or to create any transferrable development rights from the Property onto such adjacent properties. The granting of this Easement across only part of a developable lot as approved by Pitkin County and depictcd on Exhibit A,does not in any way prevent development of the remainder of th�tot, which lot shall retain all previ�usly granted development approvals&om Pitkin County,with the exception that the portion of the lot included in this Pmperty shall be subject to the terms of this Easement in perpetuity; 5.2. The right to preserv�and protect the Conservation Values in perpttuity; . 4 Exhibit B —Upper Potato Bill Conservahon Easement 5.3. The right to enter upon the Pmperty at least annually at reasonable times agrced to mutually by Grantor and the Trust to inspect the Properiy thoroughly, to monitor Grantor's compliance with, and otherwise onforce the terms of this Easement; provided that such entry shall not unreasonably interfere with Grantor's use and quiet enjoyment of the Propariy,with the exception that, upon an advanced good faith attempt to contact Grantor vcrbally or electronically, the Trust may immediately enter upon the Property in the ev�nt the Tnist reasonabiy believes that such entry is essential to prevent or mitigate a violation of the Easement; 5.4. The reght, as an interest owner in the Propetty, to prevent or enjoin Grantor or third parties(whether or not invitees of Grantor) from conducting any activity on,or use of,the Property that is inconsistent with the purposes of the Easement; and the right to require Grantor or third parties, as may be responsible, to restorE such areas or features of the Property that are damaged by any inconsistent activity or use,subject to the qualifications of Section 13.5 horoin; SS. Any other rights that the Partics may approve consistent with the purpos�s of the Easement,including adding additional purposes or defining additional Conservation Values;and 5.6. The right, as an interest owner in the Property, to receive notification from and join Grantor as a necessary party to any condemnation or eminent domain proceedings af�'ecting the Prop�rty (as described in Section l4),�or to any leases, surface use agreements, damagc agreements or rights-of-way that may be pmposed, granted or required hereafter ss a result of mineral devetopment (as described in Section 73.G) or other aetivities with the potential to impact the surfac�of the Property or its Conservation Values. � 6. RIGHTS OF GRANTOR , Grantor reserves to itself and to its personal �epresentatives; heirs, successors, and assigns,all rights and obligations accruing from its ownership of the Properry,including the right to ongage in all uses of the Property not prohibited herein that are not inconsistent with the preservation and pmtection of the Conservation Values, pursuant to IItC §I70(h)(3) and C.R.S. §38-30.5-I42. � 7. PROHIBITED AND PERMIITED USES The following uses and praetices by Grantor, though not an exhaustive recital,are either prohibited or permitted by this Easement. Certain of these uses, where specifically indicated, require notice to or approval from the Trust, or both, according to the procedures described in Sections 10 and 11 herein. Any.ather activities that are inconsistent with tht Purpose of this Essement or with presorvation and protection of the Conservation Values are prohibited. Trust's prior notice and approval is required for uses not expressty described herein when there is � qucstion as to consistency with the preservation and protection of the Consccrvation Values. • 7.1. Div�sion of Property. Grantor may not divide or subdivide (including de facto subdivision) the Property into more than one parcel of land. At all times the Property shall be ownec3 as a single pancel subject to this Easement. Ownership of the single parcel by joint 5 __.__..�. ....� _.___... Eachibit B --Upper Potato Bill Conservation Easement tenancy or tenaney in eommon is permitted;however,actions to partition or conaominiumize the Property are prohibited. 7.Z. Development Rights and Improvements. The construction, .improvement, placemcnt, or replacement of any improvements (defined as buildings, structures,mobile homes or othcr physical, human-introduced development of or on the Property, including landscaping, fences, wells, roads, septic systems, utilities, etc.) are prohibited on the Property, except as fotlows: A. encin . Grantor may repair and replace existing fences, provided any replacement fencing in wildtife migration comdors is consistent with then-current CPW guidelines for fencing in wildlife migration areas so as to permit the movement of wildlife across the Property. Gracttor may construct new fences needed for agricultura]purposes (e.g. cattle and range management),provided such new fencing is consistent with CPW fencing guidelines; B. oads. Th�re are no improved roads on the Property, and constxuction of improved roads is prohibited. Unimproved, primitive roads and tracks (meaning not graded, surfaced, cut or filled)may be maintained and developed on the Property as necessary for agriculture and property maintenance in a mannet that minimizes erosion, soii compaction,and disturbance to scnsitive ecosystems and habitat. Paving of roads is prohibited. Limited grading or surfacing of unimpmved roads or tracks is permitted only as neccssary for agriculture or property maintenance upon approval of the Trust. C. Footpaths and ATV Trails. The development and use of footpaths and other unimproved, low-impact (as.defined in Section 21.1) natural-surfaced trails not to exceed three feet in width is pormitted for agriculture, proporty m�inttnance and private,non-motorized recreation in a manner that minimius erosion and disturbance to sensitive�cosystems and habitat. D. Ponds and Ap�icultural Water Sources. There is no irrigation infrastructure now located on the Property,howcver, construction or development of irrigation ponds or stock ponds, water wells and pumps, together with other agricultursl water,sources such as stock watering tanks,wildlife guzzlers(which collect rain,snow and runoff to provide a wator source for wildlife), and low-impact or portable water storage tanks are permittod on the Property to support agricultural and wildtife use of the Property in a manner not damaging to the Conservation Values; E. Utilitias and Other Tcchnolottv. Grants of easements and rights-of-way for, and the installation of utilities, utility lines, pipelinos, communications technologies and all related infrastructure (collectively`titilities") is prohibited without prior approval from the Trust,except that: 6 Exhibit B Upper Potato Bill Conservation Easement a. Agricultural water wells and pumps are permitted in accordance with Section 7.2.D,above; � b. Low-impact(as defined in Section 21.1)utilities, such as fence-mounted solar Qanels, or solar or wind-powered pumps may be located on the Property without further notice to or approval from the Trust. Grantor shall promptly reseed and restore any surface impacts that result from the installation or maintenance of any permitted utilities or related improvcments to the Property to as close to the Property's original condition as possible within three months,weather permitting,or an altomate time period�pproved by the Tnist. 7.3. Resource Management and Use. Grantor recogr►izes the importance of good resource management and stewardship to preserve add protect the Gonservation Values. Accordingly, Grantor agrees not to alter the topography of the Properly through plaeement or removal of soil,gravel, land fill,or other materials nor to impair the relatively natural habitat for native plants, wildlife, or similar ecosystems within and upon the Property, except: (a) as necessary in emergenci�s, including for fire control and prevention; (b) for weed control as described in subsection F, below; (c) as approved by the Trust and any required permitting agencies for habitat enhancement or restoration purposes; (d) as specifically permitted for improvements described in Section 7.2 above; and(e)as necessary for the uses described below, which shall be conducted in a manner not inconsistent with the pr�servation and protection of the � Conservation Values: A. Agriculture and Livestock Grazin�. Grazing of horses snd livestock and lessing of grazing rights is permitted on the Property in a manner that dces not result in degra.dation of wildlife habitat, or significant soil erosion or low soil quality as determined by the Natural Resource Conservation Servicc or its successor organization("NRCS"). The following agricultural and livestock husbandry practices are specifically prohibited: a. Intensive growth livestock farms or commercial feed lots, d�fined as confined areas or facilities on the Property, within which the land is not grazed or cropped annually, for purposes of extended feeding and finishing of large numbers of livestock for commercial purposcs; b. Grazing or keeping of domestic sheep on the Property without CPW conscnt; c. Clearing or conversion of native rangeland or habitat to create new pastures without approval of the Trust in consultation with CPW; d. Tilled cultivation of crops,including tree farms or sod farms; e. Fish hatcheries or other aquaculture;and f. Commercial horse boarding. B. Use of Vehicles Off-Road.Grantor's private usc of vehicles off road or off-trail is permitted only in a low-impact manner that does not rosult in er�sion of, or significant compaction to, the Property's soils, harassment of wildlife, or damage to the natural vegetation, ecosystems or scenic values of the Property. Commetcial, 7 �._:,,`.�.--� __. . ��_: Exhibit B —Upper Potato Bill Conservation Easement recreational,or public use of vehicles off roads is prohibited on the Property, except for private or guided hunting purposes permitted by Grantor,as described below; � C. untin . Hunting and the leasing of hunting rights on the Properiy is peimitted in accordance with all applicablc laws, and may include guided hunting for youth, veterans and handicapped individuals per agreement with CPW; D. T s . Grantor shall not dump, permanently accumulate, or dispose of trash, garbagc, or other hazardous or unsightly refuse on the Property, except for agricultural by-products and compostable matter(including chippad,diseased or dead wood resulting from habitat improvement or fire control) produced or used on the Property; E. Habitat and Veg,etation Management. Grantor may cut, thin or burn trees and native vegetation on the Property on a limited and localiud basis to control weeds, insects,wildfire danger and disease;to prevent personal injury and pmperty damage; for domestic and agicultural uses on the Property such as firewood collection and construction of permitted fences;or as approved by the Trust to otherwise maintain or enhance the character and health of the wildlife habitat or ecosystem, which may be subject to a management plan prepared in cooperation with the Trust as deemed necessary in the sole discretion of the Trust; F. W�ed Control. Grantor agxees to control noxious weeds and invasive plant specics on the Property in accordance with the Colorado Noxious Weed Aet(January 23, 2006), or as such Act may be amended, and other applicablc laws (as defined in Section 21.1), and shall not intentionally introduce noxious weeds or other invasive species to the Property; G. 'nerals. In accordance with IRC §i 70(h) and §1.170A-14(g) of the Treasury Regulations, exploration for, extraction or removal of any mineral resource (which may include,but is not limited to,sand, gravel,rock,soil,peat,coal,uranium,oil,oil shale,natural gas or other hydrocarbons) by any surface mining method or any other mcthod in a manner inconsistent with the Purposes of this Easement is prohibited on the Property. Because Grantor dces not own all of the mincral rights associated with the Property,a mineral remoteness letter,on file with Ehe Trust,was prepared by Rare Earth Science LLC on F�° :::,2013, finding that the likelihood of surface mining on . the Property is so remote as to be negligible, in compliance with IRC §170(h) and Troas.Reg. §1.170A-14(g). In order to satisfy the intent of the above paragraph, Grantor may not sepamta or transfer Grantor's portion of the mineral rights from the Property,nor engage in,lease or otherwise permit the development of mineral rights on or under thc Property (via leases, surface use agreements, non-surfacc use agr�ements, damage agreements, rights-of-way, or other easements or agroements related to mineral developmcnt (collectively, "mineral agrecments")) except as may be required by third party mineral interest holders and in compliance with the following: 8 Ezhibit B —Upper Potato Bill Conservation Easement a. Trust's Particlpatfon in Future Mineral Agree»�ents. Grantor shall notify the Trust prior to entering into any mineral agreement wit6 a third party mineral • interest holder,and the Ttust shall havc thc same legal rights as Grantor to review, all proposed mineral agreements prior to execution, and to participate in negotiatiuns therefore in order to direct the future development of mineral resources to occur only by those methods having no more than limited, localized, temporary and reclaimable impacts on the Property, which impacts must not be irremediably destcuctive of the Conservation Values in accordance with IRC §170(hx5), (6) and Treas. Reg; §1.170A-14(gx4). The TrusYs participation may not deny any third party's uhimate right to develop minerals underlying the Property, and the Trust shall claim no tights to procceds or royalties from such developmen� Grantor retains sole execution suthority for any min�ra!�greements or transfer deeds; however, failure to notice the Trust prior to �ntoring into any mincral agreement or hsnsfer may result in a SS000 fine payable to th�Trust,in addition to othcr.remodies available under law. All mineral agreements ent�rcd into after this date shall,st a minimum,include the following: 1) Reference to this Easement and summary of the Conservation Values; 2) Acknowledgement that the agreement is subordinate and subject to the terms of this Easement; ' 3) Non-surfac� occupancy methods of mineral development are strongly preferr�d, and only the minimum structures, infrastcucture, and other disturbance or impacts to the Property shall be permitted as reasonably neeessary to mineral developmenf; 4) All impacted sites associated with mineral development shall be tecontoured and revogetated, and any damage to the Property or its Conservation Values restored,to as close to the Property's original state as possible upon completion of active drilling or mineral dtVeloprnont operations; any structures required to remain upon the Property for more than one y�sr shall bc concealed from public view and constructed and � maintaincd in a manner not damaging to the Cons'ervation Values. b. Current Mineral Leases. Ther� are no active oil and gas or other mineral l�ases on or affecting the Property at this timo. � H. Water Resourc�.s. Grantor shall not divert, dam, pollute, dredge, intentionally destabiliu or degrade Potato Bill Creek, or other naturally-occucring streams, springs, designated wetlands or other surface or subsurface water festures that may occur on thc Property, exccpt as approved by the Trust, and except for any work or structures deemed necessary by Grantor, in consultation with CPW or other sgcncy qual�ed at the time to oversee such work, to enhance, restore or control erosion or siltation of w�tcr resourccs on the Property in compliancz with all�pplicablc 1$ws(as defined in Section 21.1). The construction, installation, maintenance, improvement and roplacement of ponds, wetlands, and irrigation structures (inciuding ditches, 9 �. �� . _,.� _..._.. _.�... . - Exhibit B Upper Potato Bill Conservation Easement pipelines,headgates and related equipment)are permitted for agr�cultural purposes or the enhancement of wildlife habitat,provided such activitics are in compliance with appliea,ble laws. Soil, sand, rock and gravel produced during the excavation or coc►struction of parmitted ditches or ponds may be used or relocated on the Property in a manner not inconsistcnt with the pr�servation and protection of the Conservation Values; I. Water RiQhts. There are no water rights included in or encumbered by this Easement; J. Commsrcial and Industreal Activities. Grantor shall not conduct industrial activity or commercial recreational activity on the Property, axctpt for guided hunting activities that may be approved by CPW and leasing of hunting rights; K. eczeati n. Private, low-impact recreational uses such as hiking, horsehack riding,cross-country skiing,hunting,fishing and short-term camping are permitted on the Properiy, provided that recreational trails are limited pursuant to Section 7.2.B herein, and that any private recreational easements or agreements with neighboring landowners that predate the grant of this Easement shatl be permitted. 8. No PuBLiC Acc�ss Except by the terms of this Easement, including Scction 7.3.C,Hunting,Grantor shall not afford the public any more than visual acccss to any portion of the Property, although Grantor may permit guests or invitees to access the Property on such terms and conditions as it deems appropriate, provided that such access is consistent with the terms of this Easement and • preservation and protoction of the Conservation Values. 9. REPRESENTATIONS AND WARRANTIES Grantor represents and warrants that, afler reasonable investigation and to the best af its actual knowtedge: 9.1. Except for fuels custonnarily used or transported in connection with agricultural activities; no substanee defined, listed, or otherwisc elassified pursuant to any federal, state, or local law,regulation,or nquirement as hazardous,toxic,polluting,or otherwise or threatening to human health or the environmont exists or has been used or released on thc Property; 9.2. Thore are not now any underground storage tanks located on the Property,and no underground storage tanks have been remov�d from the Pr�perty in a manncr not in compliance with applieable laws,regulations,and requirements; 9.3. Grantor and the Property are in comptiance with all federal, state,and local laws, regutations, and roquirements applicable to the Propeity and its usa; and there is no existing, or pcnding litigation in any way�ecting,involving,or relating to thc Proptrty;� 10 Exhibit B Upper Potato Bill Conservation Easement 9.4. Grantor has good and sufficient title to the Property and has lawful authority to grant and convey the Easement, that any mortgagcs or liens on the Property are s�bordinate to the terms of this Easement, and that Grantor shall warrant and forcver defend the title to the . Essement against all and cvery person or persons lawfully claiming by, through or under • Grantor, the whole or sny part thereof, except for rights-of-way, easements, res�icrions, covenants and minoral reservations of ncord. 10. NOTICE OF INTENTION TO UNDERTAKE CERTAIN PERMITTED ACTIONS � The purpose of requiring Grantor to notify the Trust before undertaking certain activities or uses, as specifically identified in Section 7 or elsewhere herein, is to afford the Trust an opportunity to update its recozds snd, if approval is required pursuant to Section 11 below, to � ensure that the acfivities or usos in question are not inconsistent with the terms of this Easement. Grantor shall also notice Trust and seek its approval,pursuant to Section 11 below,for proposed activities or uses when there is a question as to consistency with the preservation and protection of the Conservation Values. Whenever notice and the Trust's approval are required, Grantor � . shall notify the Trust in writing not less than 45 days prior to thc date Grantor intends to undertake the activity or use in question,unless this Easement provides otherwise, and describe the nature, scope, design, location, timetable, and any other material aspect of the proposed activity nr use in sufficient detail to permit the Tnist to make an informed judgment as to the activity or use's consistency with the terms of this Easement and the preservation and protection • of the Conservation Values. Whenever notico is requirod without the Trust's approval, Grantor shall notify the Trust in writing not less than 14 days in advanco of the proposed activity or use, unless the�ctivity involves emergency activities,such as fire fighting,in which case no notice is required. 11. THE TRUST'S APPROVAL � � Whenever this Easement requires that Grantor obtain the Trust's approval for.any activity or use of the Property, or if Grantor desires approval for any activity or vse of the Property not specifically addressed herein, such approval shall be given in the Trust's sole discretion, according to whether the Trust determines that such activity or use of the Property is not inconsistent with the preservation and protection of the Conservation Values. Grantor has the . burden to prove that Grantor's proposed uses are not inconsistent with the preservation and protection of the Conservation Values. Where the Trust's appmval is required, the Trust shall . grant or withhold its approval in writing within 14 days of rec�ipt of Grantor's written notice(as described in Section 10,above)of and request therefor.The TrasYs approval may be withheld at the TrusYs sole discretion if the Trust determines that the action as proposcd would be • inconsistont with the Conservation Values or the purposes or terms of this Easement. The reason(s) for such a determination shall be set forth with specificity by the Trust in a written noUcc to Grantor. Where a modification of the proposed use or activity by Grantor would render the same not inconsistent with the purposes of the Easement and the Conserv�tion Values, the TYVSt may specify, in such written notice to Grantor, such modifications to render approval appropriate. 12. TRUST'S REMEDIES:ENFORCEMENT 11 Exhxbit B Upper Potato Bill Conservahon E$sement The Trust shall have the right to prcvent and correct or requirc correction of violations of the terms and purposes of this Easement. The Trust is not responsible for monitoring for or cnforcing violations of any applicable laws (as defined in Section 21.1), permits or third party contracts affecting the Property now or in the future, exccpt to the degra th�t any such violations may damage the Conservation Values, violate this Easement, or be otherwise inconsistent with the Purposos or terms.of this Easemont If the Tnist finds what it believes is a violation,or a threat of a viotation,the Trust shall notify Grantor of the nature of the alleged viotation. Upon receipt of this notice, Grantor shall immediately discontinue any activity that could increasc or expand the alleged violation and shall either: (a) restore the Property within 60 days as is best possible, subjoct to weather conditions and scason, to its condition prior to the viotation in accordance with a plan approved by the Trust, ar if immediate rostoration is not possible, Grantor shall submit suah plan to the Trust within 60 days; or (b) provide a written explanation to the Trust of the reason why the alleged violation should be permitted. If the Trust is not satisfied with Grantor's written explanation, the Parties agee to meet as soon as possible to resolve this difference. If a resolution of this difference cannot be achievcd at the meeting, tho Parties agree to �ttempt to resolve the dispute pursuant to Section 12.1,below. At any time, including if Grantor does not immediatety discontinue any activity that could incc�ease or expand the alleged violation while the Parties are attempting to resolve the alleged violation,or if the Trast believes an ongoing, immincnt, or proposed activity violates ihe � Easement, the Trust may, upon an advanced good faith attempt to contact Grantor verbally or electronically,take immediate, appropriate legal action to stop the acdvity, without prior norice to Grantor; without waiting for the period providod for cure to expirc; and without waiting for the 60-day mediation period to expire. The Trust may bring an action at law or in equity, ex parte as necessary, in a court of jurisdiction, to enforce the terms of this Easemeni and to enjoin by temporary or permanent injunction a violation,which may require restoration of the Pmperty to the condition that existed prior to the violation. The Trust's remedies described herein shall be in addition to all remedies now or h�reafter existing at law or in equity, and shall include, without limitation, the right to recover damages for violation of the terms of this Easement or injury to the Conservation Values including damages for the loss of scenic, aesthetic, or environmental values. Without limiting Grantor's leability therefore, the Trust, in its soie diseretion, rnay apply any damages recovered to the cost of undertaking any restorative, remedial,corrective action on the Property. Enforcement of the terms of this Easement shall be at the sole discretion of the Tn�st,and any forbearance by the Trust to excrcise its rights under this Easement in the event of any breach of any term of this Easement by Grantor shall not be deemed or construed to be a waiver by the Trust of such term or any subsequent breach of the same or any other term of this Easement or of any of the TrusYs rights under this Easement. No detay or omission by the Trust in the exercise of any right or remedy upon any breach by Grantor shall impair such right or remedy or be construed as a waiver. The failute of the Trust to discover a violation or to tako immediate legal action shall not bar the Trust from doing so within four years from the date upon which the violation is diseovered. - 12 _. . _ � - .�-.W.�� __ ._ �,_ .._. .___---___ Ea�hibit B —Upper Potato Bil� Conservation Easement All reasonable costs incurred by the Trust in enforcing the terms of this Easem�at, including, without limitation, costs and expenses of pursuing legal action and reasonable attomey's fees,shall be paid to thc Trust by Grantor,and any costs of restoration nxessitated by Grantor's violation of the terms of this Essement, shafl be borne by Grantor, unless: (1)a court fmds that the Trust acted in bad faith in seeking enforcement thcreof, in which case the Tnist shall pay Gcantor's court-awarded costs and fees, or (2) if Grantor ultimately prevails in a judicial enforcement action,the Tnzst shall pay its own costs and fees. 12.1. Mediation. If a dispute arises between the Parties concerning the consistency of any pmposed use or activity with the terms of this Easement, and Grantor agrees not to proceed with the use or activity pending resolution of the dispute, either Party may refer the dispute to mediation by wtiiten tequest upon the othtr. Within 10 days of the receipt of such request, tht Parties shall select a trained and 'unpartial mediator with experience in easements and other land preservation tools. ff the Parties �rre unablo to agree on a mediator, then the Parties shall each select a mediator with experience in conservation easements and other land preservation tools, and those two mediators shall select a mediator who shall alonc mediate tho dispute. Mediation shall then proceed in accordance with the following guidelin�s: A. P_ urpose. The purposc of the mediation is to: (a)promote discussion between the Parties; (b) assist the Parties to develop and exchange pertinent information concerning the issues in dispute;and(c)assist the Parties to develop proposals which wiil 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 mediator may meet with the Parties and their counsel jointly or ex parte.The Parties agree that they will participate in the mediation process in good faith and expeditiously, except in cases when thc Trust believes that Conservarion Values are continuing to be harmed during the mediation process, in which case the Trust can suspend its involvement in the mediation to remedy this th�cat of ongoing vio[ation. Representatives of the Parties with settlement authority wil( attend mediation sessions as required by the mediator, C, Co�dentialitv, AI! information presentcc! to the med'eator shall be deemed confidential and shall be disclosed by the medistor only with the consent of the Parties or their respoctive counsel. The mediator shall not be subject to subpoena by any Pazty in any subscquent litigation; D, Time Period and Feos. Neither Party shail be obligated to continue the mediation proccss beyond a period of 60 days from the date of receipt of tho initial request or if the mediator concludes that there is no reasonable likeiihood that continuing mediation will result in a mutually agreeable resolution of the disputo. The Parties shail equally shaze and each bear 50%of the mediator's fces. 13. Cos7's,LIABILITIES,T�xF.s,Mtn EtwtROx�rrr�,Co��.�ixCE 13 Ezhibit B —Upper Potato Bill Conservation Easement . 13.1. Costs, I.egat Reqn�rements 8ad Liabitines. Grantor retains al� responsibilitias and obligations and shall bear atl costs and liabilitits of any kind related to the ownership, operation,upkeep,and maintensnce of the Property,including the payment of property and other taxes related to the Property, and maintenance of liability insuranc� coverage. Grantor shall make best efforts to keep the Property free of any liens arising out of any work performed for, materials furnished to, or obligations incurrcd by Grantor. Nothing in this Easement shall be construed or interpreted as prohibiting Grantor from obtaining loans secured by dceds of trust encumbering the Property, provided any such d�eds of trust aro subordinate to this Easement, and shall encumber the entire Property; 13.2. Contrnl. Nothing in this Easement shall be construed as giving.rise, in the absence of a judicial decree,to any right or ability of the Trust to exercise physical or managerial control over the day Laday operations of the Property, or over any of Grantor's activities on the Property, or otherwise to become an operator with respect to the Property within thc meaning of The Comprehensive Environmenta] R�sponse, Compensation, and Liability Act of 1980, as amended("CERCLA"),and any Colorado state law counterpart; . 13.3. Hold Harmless. Grantor shall hold harmless, indemnify and defend the Trust and its members, directors, officers, employees, agents, and contractors and tho heins, porsonal representatives, successors, and assigns of cach of thcm (collectively, the "Trust Parties") from and against all liabilities including,without limitation,court awarded third-party attorna.ys' fees, arising from or in any way connected with: (a} injury to or the death of any person, or-physicat damage to any property,resulting fmm any act,omission,condition,or other matter relat�i to or occurring on oF about the Propecty,regardless of cause,unless due solely to the gross negligcnc� or intentional act of any of the Trust Parties; (b) the violation or alleged violation of, or other failure to comply with, any state, fcderal, or local law, regulation, or r�quirement, including, without limitation, CERCLA, by any person other than any of the Ttust Parties, in any way affecting, involving,or relating to the Property; (c)the presence or releaso of hazardous or toxic substances in, on, from, or under the Property at any time, of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law,regularion, or requirement as hazardous, toxic, poiluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment, un[ess caused solely by any of the Trust Parties; (d)payment of taxes imposed upon or incurred by the Property as a resutt of chis Easement, inciuding property taxes and the sale of income tax credits acquired as a result vf this Easement;(e)tax txnef ts or consequences of 8ny kind which result or do not result from entering into this Easem�nt; and (fl the obligations, covenants, representations, and warranties described herein; 13.4. Waiver of Certain Defenses. No action shall be commenced or mai�tained to enforcc the terms of any building restriction describai in this Easoment, or to compel the removal of any building or improvement, unless said action is commenced within four ye�rs &om the date of discovery of the violation for which the action is sought to be brought or � maintained. To the extent that any defense available to Gratitor pursuant to C.R.S. §38-41-119 is inconsistent with the foregoing, Grantor waives th�t dcfensc. Grantor waives the defenses of 14 Exhibit B —Upper Potato Bill Conservation Easement laches, cstoppcl and prescription with regard to the enforcement of ali other terms of this Easement;and 13.5. Acts Beyond Grantor's Coutrol. Nothiag containod in this Easement shall be construed to entitie the Trust to bring any action against Grantor for any injury to or changc in � the Property resulting from causes beyond Grantor's control (including wild firc, landslides and avalanches)or from any prudent action taken by Grantor under emcrgency conditions to prevent, abate, or mitigate significant injury to the Property resulting from such causes. Grantor is not responsible for acts of third parties not authorized to access the Property,but shall be tcsponsible for those third partios, including guests or invitees,authoriz�d by Grantor to access the Property. The Trust retains the right to enforce against third parties for violations of the Easement or damage to the Property pursuant to Section 5.6 herein. 14. EXTINGUISHMENT AND CONDEMNATION 14.1. Eztinguishment. lfie Parties agree that any changes in the economic viability of the uses permitted or prohibited by this Easement, or ch�nges to neighboring land and its use shall not be dcemed circumstances justifying the termination or extinguishment of the Easement. In addition,the inability of Grantor,or Grantor's h�irs, succ�ssors or assigns,to implement any or all of the uses permitted under this Easement shalt not impair the validity of the Easement, or be considered grounds for termination or extinguishment of this Easement. If circumstances arise in the future that render the purposes of this Easement impossible to accomplish, the Easemont can only be terminated or extinguished, in whole or in part, by judicial proceedings in a court of competent jurisdiction after the eourt has explored all options for importing other purposcs.for the Easement pursuant to the cy pres doctrine. Each Party shall promptly notify the other when it first learns of such circumstances. The amount of the proceeds to which the Tnut shall be entitled, after the satisfaction of prior claims, from any sale, exchange, or involuntary conversion of all or any portion of the Property subsequent to such termination, shall be determined, unless otherwise provided by Colorado law at the time, in accordance with the Proceeds paragraph below,and such proc,�ods shall be used by the Trust in a manner consistent with the conservation purposes of the original Easement contribution, �s required by§1.170A-14(gx6xi)of Treasury Regulations. 14.2. Condemnation. If all or any part of the Proporty is taken by exercise of the power of eminent domain or acquired by purchase in lieu of condemnation, whether by public, corporate,or other auihority,so as to terminate the Easement in whole or in part,Grantor and the Trust shall act jointly to recover the full value of the interests in the Property subject to the taking or in-lieu purchase and all damages resulting therefrom. �All expenses rcasonably incurred by Grantor and the Trust in connection with the taking or in-lieu purchase shall be paid out of the amount recovered. 'T'he Trust's share of the balance of the amount recovercd shall be determined by multiplying that balance by the percentage set forth in Proceeds paragraph below. 14.3. Proceeds. Grantor and the Tnist stipulate that as of the date of this Easement, they are each vested with a real property interest in the Property. The Partios further stipulate that the Tnist's interest in the Easement has a value of 15 percent(%)of the fair markct value of 15 �� .._._ Ezhibit B —Upper Potato Bill Conservation Easement th� Property firom this date forward, and such percentage intcrest shall remain constant in relation to any firture fair market value of the Property. Such percentage interest shall be us�d only for detcrmining the Trust's proportion of proceeds fibm any payment of damages or action resulting from circumstances described in the �xtinguishmern and Condemnation paragcaphs above. The Parties agree that the value of any improvements to the Property made by Grantor after the date of this Easement is rescrved to Grantor. 15. ASSIGNMENT OF EASEMEI�iT � In the �vent the Tcust is no longer able to carry out its duties and obligations und�r this Easement, or if circumstances change so that another similar organization is better able to carry out such duties and obligations, the Trust may, upon no less than 60 days prior notification to Grantor, elect to transfer the Eas�ment and assign its rights snd obligations under this Easement to either: (1) Colorado Open Lands, (2) the Colorado Cattlemen's Agricultural Land Trust, (3) Colorado Parks and Wildlife,or(4)a qualified non-governmental land conscrvation organization charged with a mission similar to that of the Trust; provided however,that any organization or entity select�d to accept this Easement is, at the timc of transfer: (a) willing and able to accopt the transfer; (b)a qualified organization under§170(h)of the Internal Revenue Code of 1986,as amend� (or any successor provision then applicable), and its applieable regulations; and (c) authorized to acquire and hold conservation easements under Colorado law. The Trust shall consult with Grantor regarding any selection of a qualified assignee of thc Easement, but shall ultimately have the right to select an organization as defined herein that is willing, able and qualified to the hold the Easement(the"Assignee"), and to notify Grar�tor of its selection. As � condition of such transfer, the Tnist shall require the Assignee to expressly agree, in writing, to carry out and uphold the purposes of the Easement and the Conservation Values and otherwise assum�all of the obligations and liabitities of the Trust set forth herein or created hereby. Aftor such transfer, the Trust shall have no further obligation or liability under this F.assement. Should ' the Trust be unable to assign the Easement according to this procedure, a court with competcnt ,yurisdiction shall assign thc Easomcnt. 16. SUBSEQUENT TRANSFERS OF PROPERTY Grantor agrees to notify any party who may purchase, lease, or othorwise hold interest in this Property of the existence and terms of this Easement, and to provide a copy of the Easoment and the Baseline Documentation to such party if requestod. Grantor further agcees to give notice to the Trust of the transfer of any such interest prior to trsnsfer. The Trust shall bo available for and weicome the opportunity to m�et with any prospectivp buyers or transforees of the Property to explain the terms of this Eascment to potential new owners prior to or after sale closing,or to answor any qucstions or concerns related to this Easement, or any of its supporting documentation,including the Basetine Documcntation. In addition, at any time Grantor transfers the Property to a third party, including all subsequent transfers, that party shall pay �100.00 to the Trust to cover administrative costs associated with the transfer, as well as to put the third party recipicnt on notice of the terms of this Easement. This payment is exempt from transfer fee restrictions of C.R.S. §38-35-127 because it docs not af�cct residential real property,and only�ffects�gricultural land.The failurc 16 Exhibit B --Upper Potato BiII Conservation Easement of Grantor to perform any act required by this pazagraph shatl not impair the validity of this Easement or limit its enforccability in any way. . � 17. No'rICEs Any communication that either Party desires or is required to give to thc other shall be in writing and served personally or sant by first class mail,postage pr�paid,addressed as follows or to such other addr�ss as either party from time to time shall designate by written notice to the other: To Grantor: Ranch III,LLC c%Gideon Kaufman 315 Hyman Avenue,Suite 305 Aspen,CO S 1611 To the Trust: Aspen Valley Land Trust 320 Main Street,Suite 204 Carbondale,CO 81623 18. .RECORDATION . This instrument shall be held in �scrow to be recorded immediately after complotion of the Sutey/Two Shoes administrative land exchangc, and after the expitation of all protests, challenges or stay periods, in the official records of Pitkin County, Colorado and may be re- recorded at any time as may bc requir�d to preserve its rights in this Easement. . 19.AME1vnlvtENT If circumstances arise under which an amendment to this Easement would be appropriate to promote the purposes.of thc Easement, Grantor and the Tnist may jointly amend this Easement. However,neither Grantor nor the Trust is under obligation to amend this Easement, and the Trust may decline any amendment in its sole discretion according to then-current Trust policies, which shail be made availabie to Grantor upon request. Any amendment must be consistent with, and protcct and preserve, the purposes of the Easeu�ent and the Conservation Valuos and may not affect thc Easement's perpetual duration. Any amendment must be in writing, signed by all the Parties, and recorded in the records of the Clerk and Rocorder of the appropriate Colorado County. Corrections to correct factual mistakes or typographical or cl�rical errors mny be made at the discrotion of the Trust. No amendment shali bc ailowed that affects the qualification of this Easement or the status of the Trust under any applicable laws, including C.R.S. §§38-30.5-101 et seq., or IRC §170(h) or any rogulations pmmulgated thereunder. No amendment shall be permitted that will confer a private benefit to Grantor or any other individual or entity(sce IRS Reg. 1.170A-14(h)(3�i)) greeater than the benefit to the general public,or that will result in private inurement to a Board member, staff or contract employec of the Trust(soe � IRS Reg. 1.501(cx3)-1(c)(2)). 20. SUBORDIl�IATION 17 Ezhibit B —Upper Potato Bill Conservation Easement The Property is not subject to any mortgages or liens. 21. GF.N�_RAi.PROVISIONS 21.1. Definitions. A. The terms "Grantor" and "the Trust," wherever used herein, and any pmnouns used in place of those terms, shall refer to, respectively, Grantor and its heirs, personal representatives, executors, administrators, successors and assigns, and thc Trust and its successors and assigns; B. The tcrms "Easement", "conservation easement", "Deed of Consarvation EasemenY', and "Deed of Conservation Easement in gross" refer to the immediately vest�d interest in real property defined by Colorado Revised Statutes §§38-30.5-101 et seq., and this legal document, consisting of the rights and restrictions enumerated herein,by which said Easement is granted; C. Applicable Laws. The term "applicable laws"refers to all relevant federal, state, and local statutes, ordinances,judicial decisions, exccutive orders, codes, permits or regulations having the force and effect of law that have bearing on or may control certain usos allowed by the Easement; D. Low-Impact. The term "low-impacY' refers to activitios or improvements whose location, use and construction have little or no impact on the Property and do not negatively impact thc Conservation Values. 21.2. Controlling Law. The interpretation and performance of this Easement shall be governed by the laws of the 5tate of Colorado; 21.3. Liberal Construction.This Easement shall be libetally construed in favor of the grant to ef�'ect the purposes of the Easement and the policy and purpose of C.R.S. §38-30.5-101 et seq. If any provision in this instiument is found to be ambiguous, an interpretation consistent with ensuring continuation of the purposes of the Easement and the preservarion and protection of the Conservation Values that would render the provision valid shall be favored over any interpretation that would render it invalid. The common faw rules of disfavoring restrictions on the use of real property and construing restrictions in favor of the free and unrestricted use of real property shall not apply to interpretations of this Eas�ment or to disputes between the Parties concerning the meaning of particular provisions of this Easement; 21.4. 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 shall be deemed severable and remain in full force and effect; 18 f.o..�, - Ezhibit B Upper Potato Bill Conservation Easement 21.5. Enti�+e Agrcement. This instrument sets forth the entire agreement bctween the Parties with respect to the Easemont and sup�FSedes atl prior discussions, negotiations, understandings,or agreements relating to the Easement,all of which are merged herein; 21.6. No Forfelture. Nothing contained herein will result in a forfeiture or reversion of Grantor's title in any respect; � 21.7. Joint and Several ObligaHon. The obligations imposed by this Eascment upon Grantor shall be joint and several. If the Property's ownership, now or in the future, is by a single entity consisting of multiple parties including shareholders, partncrs, or members, that entity is reciuired to notify its shareholders, partners, or members of the entity's and their individual rights and responsibilities,including any monetary or other obligations set forth in this Easement. Grantor shall provide a copy of such notice at any time upon the Trust's request; 21.8. Snecessors. The covenants, terms, conditions, and restrictions of this Easement shall be binding upon, and inure to the benefit of, the Parties hereto and Grantor's respective personal representatives, heirs, successors;transferees, and assigns, and the Trust's successors, transferees, and assigns, and shall continue as a servitude running in perpetuity with the Property; 21.9. Termination of Rig6ts and Obligat�ons. A Party's rights and obligations under this Easement terminate upon transfer of the Party's interest in the Easement or the Property, unless the transferee assumes such obligations, except that liability for �cts or omissions occurring prior to transfer shall survive transfer, 21.10. CapNons. The captions in this instrument have bcen inserted solely for convenience of reference and are not a part of this instrument and shall have no e�ect upon construction or interpretation; � 21.11. Counterparts. The Parties may execute this instrument in two or more counterparts,which shall,in the aggregate,be signed by all the Parties;each counterpart shall be deomed an original instrument as against any Party who has signed it. In the event of any disparity between the counterparts produced,the recorded counterpart shall be controlling; Z1.12. Merger. Unless the Parties expressly state that they intend a merger of estates or interests to occur,no merger shall be deemed to have occuned hereundcr or under any document executed in the future af�ecting this Easement; 21.13. Authority to Ezecute. Each pacty rcpresents to the othcr that such party has full power and authority to execute and deliver this Deed of Conserv�ttion Easement,and perform its obligations under this Easement, that the individual executing this Easement on behalf of said party is fully empowered and authorized to do so,and that this Easement constitutes a valid and legally binding obligation of said party enforceable against said party in accordance with its t�rms;and 19 Ezhibit B —Upper Potato Bill Conservation Easement 21.14. No Third Party Beneficiaric�. This Easem�nt is entered into by and between Grantor and the Trust with the intent that there are no intended third party bencficiaries that have the right or obligation to enforce the terms and provisions of this Easemen�No person or entity, other than the Grantor or the Trust, shall have standing to enforce, nor the right or obligation to enforce,the terms and provisions of this Easement or to otherwise commence or intervene in any lawsuit pertaining to this Easemen� IN WITNESS WHEREOF, Grantor and the Tnist have executed this Deed of Conservation Easement as of the date first written above. (signatures on following pages) 20 � Exhibit B Upper Potato Bill Conservation Easement GRANTOR: 2343 COUNTY ROAD,LLC, a Colorado limited liability company By: Name: Title: STATE OF ) )ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of ' , 2011,by as _ of 2343 COUNTY ROAD,LLC,a Colorado limited iiability company,as Grantor. WITNESS my hand and o�cial seal. [SEAL] Notary Public My commission expiros: 21 Exhibit B Upper Potato Bill Conservation Easement ACCEPTED by the TRUST: ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation By: Martha Cochran,Exocutive Direetor STATE OF COLORADO ) )ss. COUNTY OF ) Thc foregoing instrument was acknowledged before me this day of , 2011,by Martha Cochran as Executive Director of ASPEN VALLEY LAND TRUST,a Colorado nonprofit corporation. WITNESS my hand and official seal. � �SEAL] Notary Public My commission expires: 22 Ezhibit B —Upper Potato Bill Conservation�Easement EXHIBIT A Legal Description of Property 23 Exhibit B —Upper Potato Bill Conservation Easement EI�IBIT B Map of Property 24 ... .. � . � .. e ee . „ , e . . __.,. . , ., .�. � e .��, . .. ."� Exhibit C — Crystal Island Ranch Development Right Elimination __��__�_�_�.�_.�_��.._ ____��____..______a_�..�r.__.�._�._ ,�*�„�:d..r . � ,a� , :, �i��.�� .��r ,� �,r�`s� � �� 1r�.�ut a"�6 +�'�' . . . �� s } �� ,�� a — .�� } �� ' ` � � � � �� :�� .�. � �� '�� m� r _,,.�.r , �� , �. , �,,,�,`.se�,W`,� ', , ._. , �`, � ��f4+ �" { � ' � * � ..u,vx.s� .� f"r""'��'...:.. ; t €w '. . ( � ,`�",�.. 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RECITALS WHEREAS,the Owners of the Burdened Property along with 2343 County Road, LLC,Ranch II,LLC and Ranch IV,LLC entered into that certain agrcemcnt with the Pitkin County Board vf County Commissioners(hereinafter the`Benefited Party"}dated 20�(the"Agrcement");and WHEREAS,under the Agreement,thc Owners of the Burdened Property along with 2343 County Road,LLC,Ranch II,LLC and Ranch N,LLC agreed to relinquish ten(10)development rights that run with the Burdenul Property;and WHEREAS,it is.the dcsire and intention of the Owners of the Burdened Property to impose on the Burdened Property thc rostriction set forth in Paragraph 1 below for the benefit of the Bencfited Party. DECL.ARATION 1. estricti . Now,therefore,the Owners of the Burdened Property hercby daclare that all of the Burdencd Property shall be held and conveyed subject to the following restriction("Restriction"),which is declared and agre�d to be for the benefit of the Beneftted Party � Residential Development is precluded on the Burciened Property. 2. Perm�tted Improvements.The Restriction notwithstanding:(a)thc Owners of the Burdenod Pmperty shall have the right to locate no more than 1 single family residence along with permitted accessory structures and agricultural buildings on the combined lot area comprising Lots 14W and 15W;and(b)the owners of the Burdened Property shatl have the right to locate no more than 2 single family cesidences along with permitted accessory structures and agricultural buildings on the combined lot area comprising Lots lE,2E,3E,and 4E. 3. �ffcc� cssors. This Deed Rcstriction shall be a covenant running with the land and shall inure to the bcnefit of the Benefited Party and shati burden and bind the Burdencd Proporty. 1 Exhibit D— Crystal Island Deed Restriction 4. Severabilitv. In the event any provisions hcrein or any portion of any provision herein shall be de�med to be invalid, illegal or unenforceable, such invalid, illegal or unenforceable provision shall be deemed sev�rable, and such invaJidity, illegality or unenforcoability shall not alter any other provision or the remaining poztion of such provision. 5. 1Vo Third Partv Beneficiaries. The beneficiaries of this Dced Restriction are the Benefited Party and Owners of the Burdened Property and each of their successors in iaterest Nothing hcrein shall be deemed to create any rights in, or be for the benefit of, any third party. 6. Goveming Law. The terms end provisions of this Deed Restriction shall be constructed and enforced in accordance with the laws of the State of Colorado. TN WITNESS WHEREOF, the undersigned Owners of the Burdened Property have exeeuted this Deed Restriction effective as of the date first set forth above. Ranch Lake III, Inc Owner of Lots 1 E,4E,and SE By: ,President Ranch Lake N,LLC Ovmer of Lots 8W,9W, l OW, 11 W, 12W, 13 W,and 15W sy: ,Presidcnt STATE OF ) )ss. ° COUNTY OF ) The foregoing instrument was acknowledged before me this day of ,20 ,by as President of Ranch Lake III,Ine. Wimess my hand arzd official seal. My Commission expires: Notary Public 2 �,�r,,..� _._w.. . _ .Y.�. E�chibit D—Crystal Island Deed Restriction STATE OF ) )ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of � ,20 ,by as President of Ranch Lake IV, LLC. Witness my hand and official seal. My Commission expires: Notary Public 3 a.�,.,.�ee. _.. h:' �g. • y�; ��> �,; �,: �•; �`' }. st: �. � Exhibit E —Riding Arena Relocation .� � - � �� - �� `� �' �`� �a. . r,�� „�,:.��,�� ,� , . �, �'�` ....� ,, � -�.� a�---..�m�' #� '� �` :, �� '°� .c� _ �,rt�- �.-�s. � �K.y�.��;� _ ..a.,ar" � .,,,n, . x.w.. .;, �''��-.i.. ��rr * ar,� 'l�F;;�� r . • � n:. � ,. .., � �` � � � - :.id` :7� ! �" �� '+'�~, .� ;��rrent Approved �� ,� . �'� d' •�'�� ..,,,•�.,� ' -,*.;��"" •�' � __ ^ ` : �� °�� ;�^s 3 � �� ', Riding Arena ��,�� E�,�,posed Riding � � '��x � ��, �, ��r- ;�� g, , � location � �..�- �`� � `� �,f � � A.rena locat�c>+, � _ �� `; ___ �.e—...�: ___-----.-�- � � ' � � :�� ,�,' .,. _ ,� �,,� �-� � � � T° �Y�� w.;, � ,� �� . �;- � � �� +� �,.,��' ':. r , ^�.� ',�� +�;� + � _ e � � � "� �` � .� ' � �,'*�$.� e�, �•ri�' '�Ys�, �'°.. �_,�� ..:.- �.�`�`°: �: .. ,. s �� ( ;,�,,,,,��..��--,�,.w<. . '�v S �.r.. �.'"_ ,*„��'�jpr, �,�' e �. 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N„-�. ��. �.�` _� �„ ,� *� 1 s .x � � �, -� � � x ; E.,`'.Ia�a[Ac�£e�r.sd � �, . z . � �e � � ¢ � g p� a �� . . ,S�` � T�q ::,�.,il „ aJ �.Ccr..c-v�7r Cavtm+±-N % ��s- � 4�`� . "� � #; �� F°" ,� �.. ; S� ��y & 4 . ;��c,c�nnlr� A�.S �: i ��€�r� a :�� t��„,, 't C '_.Yi L7ClC. :CC�f�.w ,,�� ,.8^ �•;x,a�',., ��.;,�. �^ . k �� ,. - v � • � ��ci'.�'.. ��'a9n °��'� .. '� ..,. ... _ .. . � � � � � � � �k� � � � }� �; f � P� „� a<v� � o-, se": � _ ...�......_.....,�,.�. BOCC SPECIAL MEETING JANUARY 8, 2013 SECOND READING AND PUBLIC HEARING ON AGREEMENT BETWEEN COUNTY ROAD, LLC, RANCH LAKE III, INC., RANCH LAKE IV, LLC, RANCH III, LLC, AND RANCH IV, LLC ("TWO SHOES") AND THE PITKIN COUNTY BOARD OF COUNTY COMMISSIONERS The following two pieces of correspondence were submitted on the above described item: A letter from Anne Rickenbaugh to the Pitkin County Commissioners with her comments on the above item. Prepared statement read at the hearing by Hawk Greenway. . . . .. . . . .. ... .. . .._._..�,�� _..tiMklNYigNitil1911�� — sr�'aea4m�+ � Anne Rickenbaugh 223 Cottonwood Lane �4spen, CO 81611 Rickenbaugh@yahoo.com Comments on the proposed Potato Bill Conservation Easements Between Ranch III and Ranch IV LLCs and the Aspen Valley Land Trusts for consideration by the Pitkin County Board of County Commissioners on January 8,2012 I am unable to attend today's public hearing on the agreement between the County and the Two Shoes Ranch,so please accept these written comments. ` I have reviewed the comments submitted during the scoping process for the Environmental Analysis on the proposed land exchange;those who supported the exchange cited wildlife and habitat protection more than any other public benefit. The Potato Bill drainage has received a lot of attention as extremely sensitive wildlife habitat for the Rocky Mountain Big Horn sheep and also for Peregrine falcon. One of the rationales for removing this property from the public trust is that private management will offer better protection; if so,then the overlying conservation easements should reflect that,and the property should be managed more like a nature preserve than a ranch. Although the CE's do offer the benefit of perpetual restrictions,the proposed easements offer less protection than the status quo in two key areas: grazing management and road/trail/travel management. Grazin�Mana�ement: Under the stewardship of the BLM,grazing practices undergo periodic evaluation and adaptive management. The BLM has worked in concert with the Colorado Division of Parks and Wildlife (CPW)to manage the Potato Bill drainage in order to protect habitat,vegetation and water quality,a!I of which benefit not only the sensitive Big Horn Sheep and Peregrine Falcon, but many other species as well. The most recent permit the 8LM granted for the Thomas Creek Grazing allotment prescribed management practices and reduced both the duration of the permit and the num6er of permitted AUMs, because the EA for renewal of the allotment showed degradation in riparian habitat. 1 � �✓ While the proposed CEs could allow for this type of monitoring and adaptive management,they do not. It seems appropriate to include adaptable limits on grazing duration and intensity, based on periodic assessment by the land trust in concert with appropriate expertise such as range management specialists and the CPW. Granted, such a requirement would be unusual language for most conservation easements. However, if, in fact,one of the purposes of the exchange is to protect this sensitive habitat,then the CEs should maintain, if not improve the safeguards in the status quo. Road/trail/travel mana�ement: Again, under the status quo,there are de facto'restrictions on new road and trail construction and off-road vehicte use. There is a lot of evidence that new trail construction compromises habitat for a number of birds and both small and large mammals. According to Richard Knight, a CSU professor specializing in the effects of recreation on wildlife,trails create an "edge effect", rendering suitable habitat adjacent to such travel corridors unsuitable to many species specifically due to proximity to the corridors. Additionally, Mike Welker,the USFS Wildlife, Fisheries and Botany Program Manager for the Pike National Forest says "There is little doubt that habitat loss and fragmentation by roads has major impacts on Big Horn Sheep populations ... often insidious. Other management concerns inctude the increase in OHVs, horseback riding, and domestic dogs frequenting Big Horn Sheep range."1 In the interest of wildlife protection,Section 7.2C of the CEs shoutd include language requiring prior approval of the Trust;this would encourage a larger planning effort to ensure sustainable road and trail building and to minimize edge effects and incursion into sensitive habitat. Section 7.36 should have language that specifically supports the purpose of calling out the off road travel, i.e. if it's hunting,then allow it only during hunting season; such language would offer appropriate restrictions and make them easier to enforce. Because the proponents of this exchange have continuously touted its benefits to wildlife,every aspect of this transaction should uphold those benefits—perpetually. The people and conditions influencing this property will change over time,so future management of the sensitive Potato Bill drainage should not only be equally stringent as existing management, but have the flexibility to adapt to future environmental and human influences. I realize that the County is limited in that will not be the drafters or the grantees of the easements. However, if this whole show is really about wildlife and habitat protection,then wildlife must be the primary concern of the CEs. There is no reason the grantee could not alter the CEs,even if it is a departure from their normal practices. Given that there is a request to support the exchange and the easements,given the sensitive habitat involved, and given the special circumstances surrounding the current and future disposition of this property, I think it reasonable that the County request, and, if necessary, demand the above changes before offering its support. 1Welker, Mike. "Potential Impacts of New Trail Construction on Big Horn Sheep in the Pikes Peak Area of the Pike National Forest," December, 2009 2 d1 � � Thank you for your attention to these comments. If wildlife protection is an earnest objective,then please consider ways to incorporate the comments into your agreement with the land exchange proponents. . 3 �3 4 Hawk Greenway 970-920-7859 P.O.Box 12334 Aspen Colora�do 81612 hawk ,rof.net Pitkin County support for the Wexner Land Exchange First, let me sa.y thank you for t1�e opportunity to comment on this exchange. I do so as a private citizen,not as a long servuig volunteer member of the County's Open Space and Trails Board. It was in that capacity,at the request of the County Connmissioners and County Manager,that I have spent hundreds of hours investigating this pmposed exchange,including personally walking the pazcels in question. While we as a Board did look closely at every aspect of the land exchange proposal,my comments here aze personal and should nofi be construed as anything else. I do recognize that you have made a considered political decision to proceed,based upon your closed door negotiations and despite the contXoversial aspects so readily apparent.I must admit that I am struggling to understand your decision.I will begin and end this comment by urging all of you to reconsider your support for this land exchange. I oppose the Iand exchange for many reasons. I oppose your deal to write a letter in support of the exchange,as I think it adds the patina of acceptability to a de;al which is basically unaccepta.ble. I believe that turning tlus valley's public Iands private is not in the long term interest of the public and is a mistake it will be impossible to rectify. WIu1e I am not privy to the closed door negotiations you have undertaken in pursuit of this agreement to support the land exchange,I have looked closely at the Iands,the development rights,the conservation easements and the payments pmposed,and I continue to believe that this is not a good deal for the public. I oppose the privatization of public Iands through a closed door proeess. The BLM Iands in question were never on a public disposal list,and they ha.ve never been exposed to the apen mazket.Pitkin County has purchased very similar lands of half the size from a willing seller for roughly three times the"trade value"of a11 the assets Iisted as"trade"by the proponents.There is something wrong with hoiding a private fire sale for public Iands in Pitkin County.The values presented simply do not add up,and despite(or because o� the arcane rules surrounding federal appraisals,this exchange is a net loss for the public. The lands aze currently public, and as they were not on any disposal list(not meeting the BLM criteria for disposal)I ha.d never considered them at risk ar requiring purehase by the publia If they had been private lands on the market,the public certainly would've moved heaven and earth to purchase them,as we did successfully at Droste.To simply trade them away for lesser parcels and special donor directed cash accounts is wrong. I must say it reminds me of the proverbial sale of Manhattan Island for a few beads and blankets. Why have a fire sale for public lands in the Roaring Fork Va11ey when we are doing a11 we can to increase the public lands and access here?With current poputation trends we will rue the day we made such a dea1,while we look for a place ta go for any form o�outdoor recreation. I oppose this exchange because it sets a disastmus precedent.Look at the flawed process involved: To simplif�,First,a private citizen decides what public land they want.They promise a payment of more than a million dollars to the land agency in charge of making � � y the decision. They make confidential side deals with adjacent neighbors for their support. They make private negotiations with other agencies for their support,and attempt to deny access to the lanc�s in question during it's consideration for the�change. They make false statements in public,such as"there is no public access to this land". They assert that the"de,al is going through"to pressure further support.They threaten overwhelming development of vatua.ble wildlife habita.t if the deal dnes not go through(Remember 250 houses on the Sutey?Shoot the p�ippy?).And then they take the public land. What makes this a fair and above-board process?What makes you think that others with similar res�urces available won't follow the same playbook?According to an interesting article last august in the Denver Post by Brent Garner-smith and Catherine Lutz,there aze at least 52 billionaires with real esta.te interests in Aspen and the Roaring Fork Valley. If even a smatl percentage of them choase to follow tlus preeedent,then the public will lose more public land and lose access to their remaining public lands.A private sale to the Iargest adjaeent landowner(and only that landowner)is no way to mana.ge our public lands,it is funda.mentally unfair and an abuse of the system. I appose this land exchange because it essentially rewazds a trespass construction of trails on private lands. $y purchasing th�Prince Creek parcel and then trading it to the BLM for inclusian in the Crown,the proponents are dixecting public policy.They will accept public recreation"over there"but not"over here". I thi.nk that is the wrong way to decide how we manage the pub�ic recreation needs in this valley. I oppose the land exchange because of the underlying wildlife issues. In Colorado,the wildlife belong to the public. This is a reflection of the great and historic"North American Wildlife Madel",perhaps this country's greatest gi$to the world. It is the reason we have the healthy and growzng wildlife papulations we do have today. The North American Wildtife Model holds that wildlife is a public resource,a radical idea we mostiy take for granted toda.y. It is to be managed scientifically,not by"mazket pressure, land ownership or special privilege". The public recognizes the value of wildlife,places and accepts limits upon the taking of wildlife,and funds the management of wildlife by professional wildiife managers through their license fees, so a11 can participate. Locking up public lands through privatiza.tion,using as justification that it will"protect wildlife" is a huge step backward tawazds the European model,a feudal era when only the aristocracy had access to wild game, and could ma.na.ge it according to their whim. Keeping the public engaged with wildtife and invested in wildlife habitat is the only way to go.Privatizing public wildlife habitat is a shameful renouncement of the most successfiil wildlife management principle the world has ever seen. Pitkin County has taken great strides in man.aging the undeniable pressure th�increasing papulation and increasing recreating public creates in prime wildlife habitat,which will be a challenge to land and wildlife managers for the coming decades. The bottom line here is tha.t temporary trail and critical habita.t closures work. Informed by scienee,proposed by professional wildlife managers,and accepted by the majority of�he public,we da have the management toals that can make a difference for the wildlife.Privatizing the public lands should not be done for the wildlife's sake.Public management of public wildlife on publicly owned wildlife habitat is the best bet for healthy wildlife far into the future. ' The proposed exchange offers one million dollazs to the BLM office in charge of the exchange,directly ta the office wifih the sole discretion to decide the matter,in arder to manage the Sutey ranch. This alone shouid be enaugh to make one question the deal,or � Z � � having any part in it. Cash payments to public officials in charge of decisions which will enrich the proponents are highly suspect and again,set a terrible precedent. Of course the money will �o into a special account for the management of the 5utey ranch, and not be auailable personally to the official in charge. Do any of our land mana.gement agencies actually set up such specia.�accounts7 Who oversees these accounts?How is it that this doesn't create a conflict of interest on the part of the deciding bfficial?What official woulda't want a larger budget or a special slush fund?Does it concern no one else that the BLM has no track recard anywhere in the country of managing irrigated lands for any purpose,and so will have to create a special progra,m for just this particulaz parcel?boes it trouble no one else that the BLM has already investigated how to relinquish the water rights fram�the Sutey ranch?Why would yau trade away a trouble-free parcel of good land with a proven track record of management without problems for one which will require intensive management skills that you do not currently possess?And that you will have to develop and maintain in perpetuity`I Are you sure a million dollars is enough of a slush fund to undertake this new task? The Sutey Parcel lies in Garfield County,which has unforiunately just demonstrated through a public vote tha.t they do not want to ha.ve an open space program,they do not want#o spend public funds on open space, aud they do not care to develop their trail or recreational capacity. I think that is sho�t-sighted of them,but I respect their democratic rights to make such a public determination. But why on earth would Pitkin County then � go out of their way to facilitate recreational trails and public open space in Garfield � County at such a loss to the landscape of Pitkin County?It is not as if G�eld County is out there trying to protect open space or recreational trails or access to public lands. I'd be happy to help th�m if that were the case,bu#they seem to be philosoplucally opposed to those concepts in their entirety. I understand the impe#us to get something for the Caunty from an inevitable land exchange. I do question,however,the inevitability of this iand exchange. I have seen from the start the proponents attemp#to cultivate an"aura of inevita.bility"for this exchange.It is a part and parcel of their strategy,and I am sorry that you accept it as a foregone conclvsion that they will end up with the North Flank of Mount Sopris as their private Iands in a lopsided exchange.An aura of inevitabi2ity was also cultivated by Romney during the last election,and you see the way that turned out. Beware those who present you with a foregone conclusion while seeking your essential support. I question the handling of the conservation easements the proponents promise in this exchange.Not a11 conservation easements are created equal,and some coutd be said to be little more than tax dodges. As the We�er's t�retiuns are no doubt incredibly complex and in any case are private,we wi11 never know if they take deductions for these easements or not(as they claim}. The potential exists,that without accountability,they could take nullions of doliazs in deductions for the promised conservation easements. Who wi11 verify fihat they haven't? Tn essence,the public cauId end up paying them to take away our lands. I have spent my life�in a West where the private property interests were balanced by vast tracts of public lands,from the National Forests,the National Parks,ta the BLM tands. All these lands,pubiic and private,worked together in a patchwork af differing regulations,productive capacities,and in ecologically mutual support. I liked that landscape. It worked.As a child,I probabiy took it for granted tha.t such a lands�ape � � � , would always exist,that I would be free to roam in it as I needed. Today,as the human population and associated developments have grawn in this vatley,the impvrtance of o�.u� public lands has only grown as well. This valley lives on the recreational economy,which is based upon our open spaces,including the Federal,State aad County lands. Trading these tands away denies that reality.No longer does it f�eel like we have�dequa.te tracts of public open space,or access to them. The Wexner land excha.nge pi`oposes ta whittle away at yet another chunk of our public lands heritage. This is nat a one-off de�1,one tha.t once it is done we can reiax and wish it hadn't happened or hadn't unfolded the way it did. There will be,there are,more proposals to privatize our public lands on the ta.ble right now. We need to have a vigorous debate,here,in this valley,in public,not in closed sessions,about what our public lands are for,wha.t owr people wili need not only today, but for the foreseeable fut�re. In the final analysis,we mus�recognize that our public Iands shape all of our lives every day. They shape our very identities as citizens of this valley. Whether you aze a hiker,a biker,a horseback rider,a hunter, a birdwatcher,a skier,a picnicker,a photographer, a kayaker, a pilot,a tourist,a rancher,fisherman or whatever, if you have a heartbeat and are here,you appreciate and love these public lands.These lauds belang to a11 of tts who are here,all who love them both up ctose and personai and from great distances,and in the abstract. These Iands are priceless to us,and until federal appraisals designed to minimi�.e their values can recognize that,we should not let those appraisals stand or govern the disposal of our Iands. Public Iands did not just happen. VVe of this generation owe a debt to the generations who came before us,to those who invented the ideas of public Iands,of conservation of those lands for the public benefit. The very idea of public lands,of a commons,has been hard fought for genexations. It is not an un-controversial idea,and privatizing the commons is a theme which reoccurs throughout history. The loss of public Iands is simply not acceptable,and those who ha.ve lost their lands in the past regret it for ever, Whatever price you have extracted for your support will fade into insignificance Iong before our regret over our loss has faded.All things considered,I prefer the working Iandscape of my youth,a landscape with a healthy batance of public and private Iands. We should defend the balance we have here. The public lands in the Roaring Fork Vatley shape a1I of our lives here and this Iand exchange proposal illustrates,if nothing else,that we must _ not take them for granted. Thank you for the opporturuty to comment on your changed position.I woutd Iike to note that every time you have not supported this land exchange previously the proponents have come back to the ta.ble and sweetened the pot,proving both the depth of their desire and the preciousness of this public resource. I have looked at this exchange from every angle,I have tried to find it within my heart to support your changed position, but I cannot find it in me to do so. I would beg you to reconsider your support for this exchange. I really fear that you have painted a target on your,no,on our backs,drawing more attention for more Pitkin County Iand exchanges,at way too cheap a price.Pitkin County has spent millions of dollars,countless hours of staff and volunteer time,for years trying to piece together public lands and access in tlus Va1ley. This one single land deal is the largest public open space parcel to change hands in the twenty year history of the Pitkin County open space program,and it is going in the wrong direction.Don't sign on for that dea1. Again,thanks for the chance to comment. I wish you'd reconsider. � � �