Lake Springs Ranch Subdivision Preliminary Plan & PUD Amendment June 2015

                       

Exhibit 18 | Deed of Conservation Easement   

      

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NOTICE TO TITLE COMPANY: This Deed of Conservation Easement in gross requires a One-Hundred Dollar ($100.00) fee be paid to Aspen Valley Land Trust or its successor

organization by purchaser, transferee or recipient upon purchase of this Property or any portion of this Property or any lot located on this Property, pursuant to Section 15 herein.

FOURTH AMENDED AND RESTATED DEED OF CONSERVATION EASEMENT IN GROSS

RIVENDELL RANCH - GARFIELD COUNTY

THIS CONSERVATION EASEMENT IN GROSS ("Easement") is granted bk this FOURTH AMENDED AND RESTATED DEED ("Easement Deed") this I ~day of Qc be( 2008, by THE BERKELEY FAMILY LLLP a/k/a THE BERKELEY FAMILY LIMITED PARTNERSHIP ("Grantor"), to and for the benefit of ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation having offices at 320 Main Street, Suite 204, Carbondale, Colorado 81623 (the "Trust")( collectively, the "Parties").

The following exhibits are attached hereto: Exhibit A: Property Legal Descriptions, Exhibit B: Survey of Fifth Donation Parcel, Exhibit C: Survey of Property, Exhibit D: Map of Agricultural Use Boundaries, Exhibit E: Water Rights;

RECITALS

WHEREAS, Grantor is the sole owner in fee simple of approximately 143.08 acres of real property in the Spring Valley area southeast of Glenwood Springs, Garfield County, State of Colorado, more particularly described in Exhibit A, together with certain Water Rights described in Exhibit E, attached hereto and made a part hereof (the "Property"). The term "Property" shall hereinafter be defined as the land and water rights combined, and the term "Water Rights" shall refer to the water rights alone and include all of Grantor's water rights, title and interest described in Exhibit E attached hereto and incorporated herein by reference;

Return to: Aspen Valley Land Trust 320 Main Street, Suite 204 Carbondale, CO 81623 970-963-8440

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WHEREAS, Grantor donated a conservation easement in gross to the Trust by grant of that certain Deed of Conservation Easement in Gross ("Original Easement Deed") recorded by the Garfield County Clerk and Recorder on December 22, 2004 as Reception No. 665794 over and across all of the fee simple interest in approximately 40.758 acres of the Property described in Exhibit A and shown on Exhibit C attached hereto and made a part hereof ("First Donation Parcel"), together with certain water rights associated with or appurtenant to the First Donation Parcel;

WHEREAS, Grantor donated a second conservation easement in gross to the Trust by First Amended and Restated Deed of Conservation Easement recorded by the Garfield County Clerk and Recorder on October 24, 2005 as Reception No. 684872 to grant and encumber an additional 30.87 acres of real property adjacent to the First Donation Parcel, as described in Exhibit A and shown on Exhibit C attached hereto and made a part hereof ("Second Donation Parcel"); together with certain water rights associated with or appurtenant to the Second Donation Parcel;

WHEREAS, Grantor donated a third conservation easement in gross to the Trust by Second Amended and Restated Deed of Conservation Easement recorded by the Garfield County Clerk and Recorder on November 2, 2006 as Reception No. 710348 to grant and encumber an additional 23.116 acres ofreal property adjacent to the Second Donation Parcel, as described in Exhibit A and shown on Exhibit C attached hereto and made a part hereof ("Third Donation Parcel"); together with certain water rights associated with or appurtenant to the Third Donation Parcel;

WHEREAS, Grantor donated a fourth conservation easement in gross to the Trust by Third Amended and Restated Deed of Conservation Easement recorded by the Garfield County Clerk and Recorder on July 24, 2007 as Reception No. 728890 to grant and encumber an additional 22.416 acres of real property adjacent to the Third Donation Parcel, as described in Exhibit A and shown on Exhibit C attached hereto and made a part hereof ("Fourth Donation Parcel"; together with Water Rights associated with or appurtenant to the Fourth Donation Parcel;

WHEREAS, Grantor now intends to donate another conservation easement to the Trust by amending and restating the Easement Deed to grant and encumber an additional 25.921 acres of real property Grantor owns adjacent to the Fourth Donation Parcel, and described in Exhibit A and shown on Exhibits B and C attached hereto and made a part hereof ("Fifth Donation Parcel"), together with Water Rights associated with or appurtenant to the Property as described in Exhibit E, herein;

WHEREAS, Grantor and the Trust intend this Easement and Easement Deed to encumber the Property comprised of the First, Second, Third, Fourth and Fifth Donation Parcels and to amend and restate the Original Easement Deed such that all of its tenns and conditions shall apply to the First, Second, Third, Fourth, and Fifth Donation Parcel conservation easements (to be referred to collectively as "Easement"), and upon its execution and recordation, this Easement Deed shall supersede and replace any prior Easement Deed in its entirety, which will have no further force or effect;

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WHEREAS, the Property possesses natural, scenic, open space (including agricultural), and wetland and wildlife values (collectively, "Conservation Values") of importance to the Trust, the people of Garfield County, and the people of the State of Colorado that are worthy of preservation;

WHEREAS, in particular, the Property consists of irrigated agricultural land, sagebrush shrublands, ponds and wetlands in an otherwise semi-arid upland zone. The wetlands provide important wildlife habitat for numerous species of birds, waterfowl, and small mammals. The Property contains a community of sagebrush, a threatened habitat type important to big game as well as small animals and bird species. According to Section 170(h)(4)(A) of the Internal Revenue Code and Section 1.1 70A-14( d) of the Treasury Regulations, a qualified conservation contribution may be donated for the protection of one or more of several defined conservation values;

WHEREAS, the Conservation Values of the Property include Relatively Natural Habitat of Wildlife and Plants and Open Space (including agricultural land) as further described below:

• Relatively Natural Habitat[§ l.170A-14(d)(3)]. The Property contains wetlands, riparian areas, and several other important habitat types that provide food, shelter, breeding ground, and migration corridors for several wildlife species, including elk, mule deer, black bear, and bald eagles. The wetland and riparian areas are especially important to many bird species, including the Canada Geese, Killdeer, Redwing blackbirds, and Mallard, America Wigeon, Cinnamon Teal, and Ring Neck ducks.

• Open Space[§ l.170A-14(d)(4)]. The Property qualifies as open space because it will be preserved for the scenic enjoyment of the general public and pursuant to a clearly delineated federal, state or local governmental conservation policy and will yield a significant public benefit.

o Scenic Enjoyment. The Property adds to the scenic character of the local rural landscape in which it lies, contains a harmonious variety of shapes and textures, and provides a degree of openness, contrast and variety to the overall landscape. A large portion of the Property is visually accessible to the general public from County Roads 114 and 119, which are open to and actively used by residents of Garfield County and the State of Colorado. In particular, the Property contains a scenic stream channel, ponds and wetlands, as well as the verdant irrigated fields of the sod farm and a sagebrush-dominated hillside, and provides spectacular views of Mt. Sopris. The terms of the Easement do not permit a degree of intrusion or future development that would interfere with the essential scenic quality of the land.

o Agriculture. A portion of the Property is currently used for agricultural purposes as an active sod farm. This use is compatible with other land use in the vicinity, as adjacent properties are also used for agricultural production.

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o Governmental Policies. Conservation of the Property is promoted by the following local, state, and federal governmental policies, and the laws and regulations of the State of Colorado and the United States support conservation of the Property relative to its scenic, wildlife habitat, agricultural heritage, and natural area values:

• Local Policies:

Gar.field County Comprehensive Plan of 2000, which states:

Garfield County includes a multitude of sensitive ecosystems, including riparian and wetlands resources, wildlife habitat and important visual corridors.

Section 8.0 Open Space and Recreation: The rural character of Gmfzeld County, particularly the unincorporated portions, is defined in a large extent by the presence of large parcels of open space. County residents value the rural and open space qua] ities enhanced by ranch lands and expressed strongly a desire to preserve it to the greatest extent possible. The transition of agricultural lands to more urban uses, particularly in the eastern portion of the County and the Roaring F ark Valley floor, has forced the retainment of open space uses to the forefront of issues currently facing the County.

Section 8.4 Traditional Open Space Approaches: Visual corridors are defined as open spaces, particularly located along frequently traveled vehicular or pedestrian paths that contain natural features of sufficient aesthetic quality to warrant their preservation or protection .... The primary areas within the County that could be classified as visual con·idors include the hillsides that comprise important visual resources to both residents and visitors to the area.

Section 8.5 Conclusions: The rural nature of Garfield County is defined by important visual corridors and land that has historically been in agricultural uses. Assuming existing development levels and current regulatory approaches, agricultural land and other important open spaces in the County will continue to disappear. These impacts are associated with the cumulative impacts of projects on dwindling open space resources.

• Statewide Policies:

The State of Colorado has recognized the importance of private efforts toward the preservation of natural systems in the State by the enactment of C.R.S. §§38-30.5-101 et seq. C.R.S. § 33-1-101, provides in relevant part that "it is the policy of the state of Colorado that the wildlife and their environment are to be protected, preserved, enhanced, and managed for the use, benefit, and enjoyment of the people of this state and its visitors." C.R.S. § 38-30.5-102 provides for the creation of conservation easements to maintain land "in a natural, scenic, or open condition, or for wildlife habitat, or for agricultural, horticultural, wetlands, recreational, forest or other use or condition consistent with the protection of open land ... "

The Colorado Department of Agriculture Statutes, C.R.S. §§ 35-1-101, et seq., provide in part that "it is the declared policy of the State of Colorado to

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conserve, protect, and encourage the development and improvement of its agricultural land for the production of food and other agricultural products."

Conservation of the Property is further promoted by the Colorado Division of Wildlife's (CDOW) Wildlife Conservation Section Briefing Paper, dated March 3, 2005, ''Needs for Habitat Protection of Colorado's Sagebrush Communities," which states:

Sagebrush communities are among the most important wildlife habitats in North America.... In Colorado, no fewer than 12 species of importance are linked to the sagebrush communities as a key component of their habitat. Concern has been raised regarding the influence of deteriorating sagebrush communities on pronghorn and mule deer, and the relationship between elk and mule deer in sagebrush communities. . . . Clearly, given the species, and the number and diversity of species, whose well-being is so closely tied to sagebrush communities, protecting and managing these habitats will go far in meeting 2 of the Wildlife Commission's top priorities from its Strategic Plan (2002): "Protect high priority deer and elk habitat" (H 1.3), and "Habitat to support broadest sustainable wildlife populations" (SI.I). The Division has long demonstrated its interest in sagebrush habitats, with numerous projects initiated for various objectives ....

• Federal Policies:

Federal legislation supports conservation of the Property as well, through the Farmlands Protection Policy Act and 2008 Farm Bill and extensions therein of benefits originally provided by the 2006 Pension Protection Act. The Farmlands Protection Policy Act, P.L. 97-98, 7 U.S.C. §§4021, et seq., the purpose of which is "to minimize the extent to which federal programs and policies contribute to the unnecessary and irreversible conversion of farmland to nonagricultural uses, and to assure that federal programs are administered in a manner that, to the extent practicable, will be compatible with state, units of local government, and private programs and policies to protect farmland", supports the Property's protection. Section 170(b)(l)(E)(iv) of the Internal Revenue Code as amended by the 2006 Pension Protection Act and extended by the 2008 Farm Bill creates a greater incentive in the form of an increased tax deduction and carry forward period for landowners conserving their properties through the use of perpetual conservation easements, with even greater tax benefits available to agricultural landowners provided that the conserved property remains available for either agricultural or livestock production, or both.

o Significant Public Benefit. The Property is located in a rural, agricultural, mountainous area of Garfield County, where there is a foreseeable trend of

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intense development in the vicinity of the Property in the near future. The City of Glenwood Springs lies just 7 miles northwest of the Property, and the Town of Carbondale lies 6 miles to the south. There is a strong likelihood that development of the Property would contribute to degradation of the scenic and natural character of the area. Preservation of the Property will continue to provide an opportunity for the general public to appreciate its scenic values, as described above.

These Conservation Values are of great importance to Grantor, the Trust, the residents of Garfield County, and the State of Colorado.

WHEREAS, Grantor intends, as owner of the Property, to convey to the Trust the right to preserve and protect the Conservation Values of the Property in perpetuity and the Trust agrees by accepting this grant to honor the intentions of Grantor stated herein and to preserve and protect in perpetuity the Conservation Values of the Property for the benefit of this generation and the generations to come;

WHEREAS, the Trust is a charitable organization as described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code") and is a publicly-supported organization as described in Section 170(b)(l)(A) of the Code whose primary purpose is to preserve and protect the natural, scenic, agricultural, historical, and open space resources of the greater Roaring Fork and Colorado River Valleys, including the area in which the Property is located, by assisting landowners who wish to protect their land in perpetuity, and is a "qualified organization" to do so within the meaning of Section 170(h)(3) of the Code;

WHEREAS, the Board of Directors of the Trust has duly authorized the Trust's Executive Director or her designee to execute and accept conservation easements on behalf of the Trust.

NOW, THEREFORE, in consideration of the matters above, the mutual covenants, terms, conditions and restrictions contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. Grant. Grantor hereby voluntarily and irrevocably grants and conveys to the Trust the Easement, pursuant to C.R.S. §§ 38-30.5-101 et seq., through the terms mutually agreed to in this Easement Deed, 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. The Easement shall constitute a binding servitude upon the Property and shall be subject to prior reservations, easements, encumbrances and exceptions of record, except as otherwise set forth herein.

2. Purposes. Pursuant to the terms of C.R.S. §§ 38-30.5-101 et seq., the purposes of the Easement are to assure that the Property will remain forever predominantly in its scenic, natural and open space (including agricultural) condition, subject to the uses of the Property permitted hereunder, to protect and preserve the Conservation Values of the Property in perpetuity, to prevent any use of the Property that is not consistent with the preservation and protection of the Conservation Values of the Property and, in the event of their degradation or destruction, to

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restore such Conservation Values of the Property (the "Purposes"). Specifically, Grantor wishes to preserve the natural vegetation and riparian and wetland areas as relatively undisturbed habitat and maintain the remainder of the Property as productive agricultural open space.

3. Intent. Subject only to the Purposes set forth above and express prohibitions below, the intent of the Parties is to permit all uses of the Property that are consistent with the preservation and protection of the Property's Conservation Values as determined by the Trust in its sole discretion. Nothing in this Deed is intended to compel a specific use of the Property other than the preservation and protection of the Conservation Values.

4. Baseline Documentation. The Parties acknowledge that a Baseline Documentation of the Conservation Values and relevant features of the Property has been prepared by TG Malloy Consulting, Inc., a company familiar with conservation easements, the Property, and the environs on December 23, 2004 and most recently updated on May 22, 2008, and is on file with the Parties. The Trust and Grantor acknowledge and agree that by execution of this Easement Deed, they are hereby approving, acknowledging, and accepting the Baseline Documentation as an accurate representation of the condition of the Property at the time of this grant. The Parties agree that the Baseline Documentation is not intended to preclude the use of other evidence to establish the present condition of the Property should a controversy arise over its use.

5. Rights of the Trust. To accomplish the purposes of the Easement, Grantor conveys the following rights to the Trust:

5 .1. The right to preserve and protect the Conservation Values of the Property in perpetuity;

5.2. The right to enter upon the Property at reasonable times, agreed to mutually by Grantor and the Trust, to inspect the Property thoroughly, to monitor Grantor's compliance with, and otherwise enforce the terms of this Deed; provided that such entry shall not unreasonably interfere with Grantor's use and quiet enjoyment of the Property, except that no such notice shall be required in the event the Trust reasonably believes that immediate entry upon the Property is essential to prevent or mitigate a violation of the Easement; and

5.3. The right to prevent any activity on or use of the Property that is inconsistent with the purposes of the Easement, or with the preservation and protection of the Conservation Values of the Property, and the right to require the restoration of such areas or features of the Property that are damaged by any inconsistent activity or use.

5.4 Any other rights that the Parties may approve consistent with the purposes of the Easement and the Conservation Values.

6. Prohibited and Permitted Uses. Grantor reserves to itself and to its personal representatives, heirs, successors, and assigns, all rights and obligations accruing from its ownership of the Property, including the right to engage in all uses of the Property not expressly prohibited herein that are consistent with the preservation and protection of the Conservation Values of the Property, including ongoing agricultural and ranching uses. Grantor is prohibited

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from any activity on or use of the Property inconsistent with the preservation and protection of the Conservation Values.

The following uses and practices by Grantor, though not an exhaustive recital, are either consistent with and permitted, or not consistent with and prohibited by this Deed. Expressly permitted uses are to be conducted in a manner consistent with the preservation and protection of the Conservation Values of the Property, pursuant to Section 170(h)3 of the Code, and C.R.S. § 38-30.5-102. Certain of these consistent uses and practices are identified as being subject to specified conditions, such as to the notice provision described in Section 9, or to the requirement of and procedures for prior approval by the Trust described in Section 10, or to both. Uses not described here as expressly permitted or prohibited are guided by Section 10 herein.

6.1. Improvements. Grantor shall not construct, improve, place, or replace any buildings, structures, mobile homes or facilities, equestrian arenas, parking lots, or billboards on the Property, except as follows:

A. Fencing. Grantor may replace existing fences and erect new fencing on the Property, provided such fencing complies with then-current Colorado Division of Wildlife standards for fencing in a wildlife migration area. Existing fencing that exceeds such CDOW height requirements may be repaired and replaced in order to exclude wildlife from the sod farm area of the Property, as shown in Exhibit D, herein; however in the event the Property reverts to wildlife habitat or other uses not requiring the exclusion of large game animals, Grantor agrees to remove or replace such fencing with CDOW-compliant fencing;

B. Roads, Trails, Landing Pads and Easements. The conveyance of easements, rights-of-ways, or the building of improved roadways on the Property is prohibited without the consent of the Trust; such consent shall be in the Trust's sole discretion. Notwithstanding the foregoing, Grantor shall be entitled to convey an easement to the Spring Valley Sanitation District for the existing return flow water pipeline on the route traversing the Property which route is generally depicted on Exhibit 2 of the Baseline Documentation. Such easement shall provide that when maintenance is required on the pipeline, every reasonable effort shall be made to minimize impacts to the wetland vegetation and following such maintenance all disturbed areas shall be restored promptly to their original condition prior to maintenance. The existing public road traversing the Property and dedicated to public use pursuant to Garfield County Subdivision Regulations, may be vacated in the future; in which case, it may either be reclaimed or maintained as a private agricultural road with notice to the Trust so that it may update its records. Furthermore, it is acknowledged the Third, Fourth, and Fifth Donation Parcels are subject to an easement in favor of the Spring Valley Sanitation District for an existing sanitary sewer line which route is generally depicted on Exhibit 3 of the Baseline Documentation. Finally, it is acknowledged that in the future, Grantor may convey an easement for roadway and utility purposes for public use over, across and under the right of way for Spring Valley Road as shown on the plat of Lake Springs Ranch PUD as approved by Resolution Number 79-64 recorded June 19, 1979 in Book 530 at Page 93 as Reception No. 295037 and subject to all approvals and proceedings of Garfield County

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subsequent thereto provided that any conveyance of the right of way is made with notice to the Trust so that it may update its records and any conveyance includes requirements that use of the right of way minimize impacts upon the Conservation Values of the balance of the Property and that following any such use, the Property is be restored as best practicable to the Property's condition prior to such use.

Hard surface trails and dirt-bike courses are prohibited on the Property. Low­impact trails that are designed, located, and used in a manner to minimize erosion and wildlife and scenic disturbance, are permitted on the Property in locations approved by the Trust. Landing pads or strips are prohibited on the Property;

C. Utilities and Communications Facilities. As necessary to the uses permitted in Subsection 6.1 and 6.2, herein, and provided that the location and use of the following described amenities is consistent with preservation and protection of the scenic and wildlife Conservation Values of the Property, Grantor may install and maintain the following for use on Property: (a) utility lines; (b) water lines, pumps and wells; (c) wind­powered electric generators, solar collectors, fuel cells, and other energy-related technology; and (d) oil and natural gas pipelines and production facilities as permitted by easement agreements and rights of way of public record described in Subsection 6.2(D), herein. These utilities, structures, and facilities are for onsite use, unless otherwise approved by the Trust and any impact from the installation and maintenance of such amenities to the Property or its Conservation Values shall be restored as best possible to the Property's original condition using appropriate native vegetation within 6 months, or as outlined in executed agreements; and

D. Recreational Structures. Picnic tables, benches, fire pits, and temporary camping accommodations are permitted provided they are consistent with preservation and protection of the Conservation Values of the Property. Golf courses and other high­impact recreational amenities such as indoor and outdoor riding arenas are prohibited on the Property.

6.2. Resource Management. Grantor recognizes the importance of good resource management and stewardship to preserve and protect the Conservation Values of the Property. The following uses of the Property shall be conducted in a manner that is consistent with the preservation and protection of the Property's Conservation Values as described hereafter. In the event the Trust believes any resource management practice(s) on the Property are not consistent with the preservation and protection of the Conservation Values, the Trust may request that Grantor and the Trust, at Grantor's expense, consult with a mutually agreed upon resource management professional. This professional will provide written recommendations for said resource management practice(s) that are consistent with the preservation and protection of the Conservation Values.

A. Agriculture. Grantor retains the right to conduct agricultural operations on the Property in a manner consistent with preservation and protection of the Conservation Values and sound environmental practices in confonnance with then applicable governmental regulations, and to lease lands with appurtenant Water Rights for permitted

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agricultural purposes. Permitted agricultural operations include grazing and raising of horses and livestock, raising crops of all kinds, including without limitation, the production of sod for commercial purposes, tree nurseries not exceeding 5 acres in size, vineyards, potential crop sources for biofuel production such as cellulose, oil seeds and/or algae, and all other agricultural (ranching, farming and related) activities consistent with protection of the long-term ecological and economic viability of the land, provided that all agricultural operations or activities are conducted in a manner that does not result in significant soil erosion or low soil quality and with sound management practices as determined by the Natural Resource Conservation Service ("NRCS") or its successor organization. The terms and conditions of this Easement Deed are intended to ensure that the Property remain available for agricultural or livestock production, or both, in accordance with Section 170(b)(l)(E)(iv) of the Code. Grantor agrees not to expand agricultural operations beyond the boundaries ofland currently in agricultural production, as shown in Exhibit D, herein.

Agricultural uses and operations prohibited by this Easement Deed include (a) commercial feed lots, defined as confined areas or facilities for purposes of extended feeding and finishing of large numbers of livestock or horses for hire, and (b) commercial equestrian operations.

If agricultural operations on the Property cease in the future, Grantor agrees to reseed any areas heavily disturbed by agricultural operations with appropriate native vegetation to prevent the spread of noxious weeds and to provide forage and habitat for wildlife. The Parties agree that agricultural operations may resume any time thereafter provided that such operations are consistent with the preservation and protection of the Property's Conservation Values and with the Trust's approval pursuant to Section 10 herein;

B. Hunting and Trapping. Hunting and the leasing of hunting rights on the Property is permitted. The lethal trapping of wildlife on the Property is prohibited except as necessary to remove wildlife that is a nuisance or a threat to agricultural operations on the Property and consistent with local, state, and federal rules and regulations;

C. Relatively Natural Habitat and Surface Impacts. Except within the boundaries of land currently in agricultural production, as shown in Exhibit D, herein, Grantor shall not alter the topography of the Property through placement or removal of soil, gravel, land fill, or other materials nor alter, disturb, or impair the relatively natural habitat for native plants, wildlife, or similar ecosystems within and upon the Property, except: (a) as approved by the Trust for habitat enhancement or restoration purposes such as removing tamarisk, chaining juniper or sagebrush, constructing ponds and wetlands, stabilizing streambanks, and conducting controlled bums; (b) as necessary in emergencies including fire, pest and disease prevention; (c) as necessary for uses permitted by previously executed easement agreements or rights of way of public record; and ( d) for uses permitted in Subsection(s) 6.1 and 6.2, herein

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Grantor may control noxious weeds and invasive plant species on the Property in accordance with federal, state and local laws and regulations, and shall not intentionally introduce noxious weeds or other invasive species to the Property;

D. Minerals. At the time of granting this Easement Deed, the United States by virtue of its original patent to the Property reserved all or a portion of the mineral rights to itself. For this reason, a mineral remoteness letter dated December 21, 2004 has been completed by BIO-Logic Environmental in compliance with Section 170(h) of the Internal Revenue Code and related Treasury Regulations, a copy of which is on file with the Trust. Grantor's current or future ownership of mineral rights shall be subject to the following provisions:

Subsurface Mineral Rights. Grantor's exploration, development, mining or other extraction of minerals, coal, peat, sand, gravel, rock or soil is prohibited, except that Grantor may lease to a third party the right to explore for or extract oil and natural gas from below the surface of the Property; provided, however, that such activities occur only in a manner that is consistent with the meaning, provisions, and terms of Section 170(h) of the Code and Section l.170A-14(g) of the Treasury Regulations;

Grantor shall incorporate this Easement by reference and summarize the Property's Conservation Values in any and all future oil and gas leases, surface use agreements, or no-surface occupancy agreements that affect the Property or address mineral rights separated after the date of this Easement grant, which leases and agreements shall be subordinate to this Easement Deed.

Surface Mineral Rights. Grantor shall not transfer, lease or otherwise separate the rights to coal, peat, oil shale, soil, sand, gravel, rock, or any other mineral substance from the surface of the Property nor explore for or extract the same from the surface of the Property.

E. Water Resources. The manipulation, diversion, pollution, drainage, dredging, or other alteration of streams, natural lakes, ponds, wetlands, springs, or other surface or subsurface water features on the Property in a manner that degrades or destabilizes their natural banks or shorelines, or otherwise impairs the .Conservation Values of the Property is prohibited. Agricultural activities or other disturbance inconsistent with the protection and preservation of the Conservation Values, including the grazing of livestock, parking or driving of vehicles, or tilling of land, is prohibited within 25 feet of the high water mark of the wetlands, as shown in Exhibit D, herein. Notwithstanding the foregoing, the construction and maintenance of agricultural ditches, a culvert bridge crossing, and water diversion structures, pump intakes, irrigation water collection ponds, stock ponds or other agricultural improvements as well as incidental access through the wetlands and setback areas while engaging in agricultural operations is pennitted without further permission from Grantee. It is acknowledged and understood that the wetlands on the Property will experience seasonal fluctuations in water levels due to natural events, including droughts as well as irrigation diversions made by Grantor and potential demands imposed by applicable water law;

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F. Water Rights.

Water Rights Included. The Parties agree that it is appropriate to include the Water Rights appurtenant to the Property in this Easement pursuant to C.R.S. § 38-30.5-102. The Water Rights consist of all of Grantor's rights, title, and interests in and to the water and water rights, as more specifically described in Exhibit E attached hereto and incorporated herein by reference - including surface and groundwater rights, whether tributary, nontributary, decreed or undecreed - together with all associated ditches, head gates, springs, reservoirs, water allotments, water shares and stock certificates, contracts, units, wells, easements and rights of way. Grantor shall retain and reserve the right to use the Water Rights or that portion sufficient to maintain and improve the Conservation Values of the Property, and shall not transfer, encumber, lease, sell or otherwise separate water rights necessary and sufficient to maintain and improve the Conservation Values of the Property from title to the Property itself;

Restrictions on Water Rights. The Water Rights may not: (i) be changed to or used for municipal, industrial, or commercial uses or any other uses that harm the Conservation Values; (ii) may never be sold, leased, encumbered separately from the Property or otherwise legally separated from the Property; and (iii) may never be changed in any way (via a change in point of diversion, place of use, type of use, or quantity), except pursuant to a legally-recognized interruptible supply contract, fallowing agreement, emergency water loan, or similar agreement to temporarily increase instream flows in Landis Creek. Water Rights may be used for other activities on the Property that are not prohibited by the terms of this Easement Deed, after a written determination by the Trust that such changes are consistent with the preservation and protection of the Conservation Values, and do not create an intent to abandon;

Protection of Water Rights. If Grantor fails to maintain the historic use of the Water Rights, or the Water Rights are otherwise subject to a threat of abandonment, the Trust shall have the right, but not the obligation, to (i) enter upon the Property and undertake any and all actions reasonably necessary to continue the use of the historic Water Rights, or (ii) after 90 days written notice to Grantor, seek to change the Water Rights to another beneficial use approved by the Trust and permitted under this Easement Deed, or convey all or part of such rights to the Colorado Water Conservation Board or its successor organization for the specific purpose of increasing the flow in Landis Creek;

Effect of Loss. No loss of Water Rights through injury or abandonment, or conversion of the Water Rights as set forth above, shall be considered a severance of the title to the Water Rights from the Property for federal or state tax or other purposes, or as basis for extinguishment of this Easement.

G. Recreation. Passive, non-motorized recreational uses such as hiking, cross country skiing, horseback riding and mountain biking are permitted on the Property, provided that they are conducted in a manner that is consistent with the preservation and protection of the Property's Conservation Values;

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6.3. Restricted Uses/Practices.

A. Subdivision. By this instrument, Grantor agrees to merge all previously existing parcels of land on this Property into one parcel that may not be divided, subdivided, or de facto subdivided in the future, with the exception of minor adjustments of lot lines. It is agreed that the Property may be included in a common area or an agricultural reserve appurtenant to the Lake Springs Ranch P.U.D. Subdivision and otherwise conveyed to the property owners association for said Subdivision subject to this Easement and so long as the Conservation Values established hereunder are preserved, protected and maintained. In the event the Property is so conveyed, Grantor shall make an additional monitoring payment of $12,000 to the Trust for the preservation and protection of the Conservation Values. It is further acknowledged that Grantor may continue to develop the balance of its unencumbered, adjacent property as a residential subdivision;

B. Motor Vehicle Use. Off-road use of motorized vehicles is permitted in a manner consistent with the preservation and protection of the Conservation Values of the Property except within the setback area around the springs and wetlands as described in 6.2(F), herein;

C. Trash. Grantor shall not dump, permanently accumulate, or dispose of trash, garbage, or other hazardous or unsightly refuse on the Property, except for agricultural by-products and vegetative matter produced or used on the Property;

D. Commercial and Industrial Activities. Grantor shall not conduct industrial activity or any more than de minimis commercial recreational activity on the Property pursuant to Section 2031 ( c) of the Code;

7. Access. By terms of this Easement Deed, Grantor does not afford the public any more than visual access to any portion of the Property, although Grantor may permit public access to the Property on such terms and conditions as it deems appropriate, provided that such access is consistent with the terms of this Easement Deed.

8. Representations and Warranties. Grantor represents and warrants that, after reasonable investigation and to the best of its knowledge:

8.1 No substance defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise or threatening to human health or the environment exists or has been used or released on the Property;

8.2 There are not now any underground storage tanks located on the Property, and no underground storage tanks have been removed from the Property in a manner not in compliance with applicable laws, regulations, and requirements;

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8.3 Grantor and the Property are in compliance with all federal, state, and local laws, regulations, and requirements applicable to the Property and its use and there is no existing, pending or threatened litigation in any way affecting, involving, or relating to the Prope1iy;

8.4. Grantor has good and sufficient title to the Property and has lawful authority to grant and convey the Easement, that any mortgages or liens on the Property are subordinate to the terms of this Easement Deed, and that Grantor shall warrant and forever defend the title to the Easement against all and every person or persons lawfully claiming by, through or under Grantor, the whole or any part thereof, except for rights-of-way, easements, restrictions, covenants and mineral reservations of record.

9. Notice of Intention to Undertake Certain Permitted Actions. The purpose of requiring Grantor to notify the Trust before undertaking certain activities or uses, as identified in Section 6 or other Sections herein, is to afford the Trust an opportunity to update its records and, if approval is required, to ensure that the activities or uses in question are consistent with the terms of this Easement Deed. Grantor shall also notice Trust and seek its approval for proposed activities or uses not specifically addressed herein, pursuant to Section 10, below. Whenever notice and the Trust's approval, as described in Section 10 below, are required, Grantor shall notify the Trust in writing not less than 60 days prior to the date Grantor intends to undertake the activity or use in question, unless this Easement Deed provides otherwise, and describe the nature, scope, design, location, timetable, and any other material aspect of the proposed activity or use in sufficient detail to permit the Trust to make an informed judgment as to the activity or use's consistency with the terms of this Easement Deed and the preservation and protection of the Property's Conservation Values. Whenever notice is required without the Trust's approval, Grantor shall notify the Trust in writing not less than 30 days in advance of the proposed activity or use.

10. The Trust's Approval. Whenever this Easement Deed requires that Grantor obtain the Trust's approval for any activity or use of the Property, or if Grantor desires approval for any activity or use 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 consistent with the preservation and protection of the Property's Conservation Values. Grantor has the burden to prove that Grantor's proposed uses are consistent with the preservation and protection of the Conservation Values of the Property. Where the Trust's approval is required, the Trust shall grant or withhold its approval in writing within 30 days of receipt of Grantor's written notice (as described in Section 9, above) of and request therefor. The Trust's approval may be withheld at the Trust's sole discretion if the Trust determines that the action as proposed would be inconsistent with the Conservation Values or the purposes or terms of this Easement or Easement Deed. The reason(s) for such a determination shall be set forth with specificity by the Trust in a written notice to Grantor. Where a modification of the proposed use or activity by Grantor would render the same consistent with the purposes of the Easement and the Conservation Values, the Trust may specify, in such written notice to Grantor, such modifications to render approval appropriate.

11. Trust's Remedies: Enforcement. The Trust shall have the right to prevent and correct or require correction of violations of the terms and purposes of this Easement or Easement Deed. If

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the Trust finds what it believes is a violation, or a threat of a violation, the Trust shall notify Grantor of the nature of the alleged violation. Upon receipt of this notice, Grantor shall immediately discontinue any activity that could increase or expand the alleged violation and shall either: (a) restore the Property within 60 days as is best possible to its condition prior to the violation in accordance with a plan approved by the Trust, or if immediate restoration is not possible, Grantor shall submit such plan to the Trust within 60 days; or (b) provide a written explanation to the Trust of the reason why the alleged violation should be pennitted. If the Trust is not satisfied with Grantor's written explanation, the Parties agree to meet as soon as possible to resolve this difference. If a resolution of this difference cannot be achieved at the meeting, the Parties agree to attempt to resolve the dispute pursuant to Section 11.1, below.

At any time, including if Grantor does not immediately discontinue any activity that could increase or expand the alleged violation while the Parties are attempting to resolve the alleged violation, or if the Trust believes an ongoing, imminent, or threatened activity violates the easement, the Trust may take immediate, appropriate legal action to stop the activity, without prior notice to Grantor; without waiting for the period provided for cure to expire; and without waiting for the 60-day mediation period to expire. The Trust may bring an action at law or in equity, ex parte as necessary, in a court of jurisdiction, to enforce the terms of this Easement Deed and to enjoin by temporary or permanent injunction a violation, which may require restoration of the Property to the condition that existed prior to the violation. The Trust's remedies described herein shall be in addition to all remedies now or hereafter existing at law or in equity, and shall include, without limitation, the right to recover damages for violation of the terms of this Easement Deed or injury to the Conservation Values including damages for the loss of scenic, aesthetic, or environmental values, Without limiting Grantor's liability therefore, the Trust, in its sole discretion, may apply any damages recovered to the cost of undertaking any restorative, remedial, corrective action on the Property.

Enforcement of the terms of this Easement Deed shall be at the sole discretion of the Trust, and any forbearance by the Trust to exercise its rights under this Easement Deed in the event of any breach of any term of this Easement Deed by Grantor shall not be deemed or construed to be a waiver by the Trust of such term or any subsequent breach of the same or any other term of this Easement Deed or of any of the Trust's rights under this Easement Deed. No delay or omission by the Trust in the exercise of any right or remedy upon any breach by Grantor shall impair such right or remedy or be construed as a waiver. The failure of the Trust to discover a violation or to take immediate legal action shall not bar the Trust from doing so within four years from the date upon which the violation is discovered.

All reasonable costs incurred by the Trust in enforcing the terms of this Easement Deed, including, without limitation, costs and expenses of pursuing legal action and reasonable attorney's fees, and any costs of restoration necessitated by Grantor's violation of the terms of this Easement Deed, shall be borne by Grantor, unless a court finds that the Trust acted in bad faith in seeking enforcement thereof, in which case, the Trust shall pay Grantor's court-awarded costs and fees.

11.1. Mediation. If a dispute arises between the Parties concerning the consistency of any proposed use or activity with the terms of this Easement Deed, and Grantor agrees not to

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proceed with the use or activity pending resolution of the dispute, either Party may refer the dispute to mediation by written request upon the other. Within 10 days of the receipt of such request, the Parties shall select a trained and impartial mediator with experience in easements and other land preservation tools. If the Parties are unable to agree on a mediator, then the Parties shall each select a mediator with experience in conservation easements and other land preservation tools, and those two mediators shall select a mediator who shall alone mediate the dispute. Mediation shall then proceed in accordance with the following guidelines:

A. Purpose. The purpose of the mediation is to: (i) promote discussion between the Parties; (ii) assist the Parties to develop and exchange pertinent information concerning the issues in dispute; and (iii) assist the Parties to develop proposals which will enable them to arrive at a mutually acceptable resolution of the controversy. The mediation is not intended to result in any express or de facto modification or amendment of the ternis, conditions, or restrictions of this Easement Deed;

B. Participation. The mediator may meet with the Parties and their counsel jointly or ex parte. The Parties agree that they will participate in the mediation process in good faith and expeditiously, except in cases when the Trust believes that Conservation Values are continuing to be harmed during the mediation process, in which case the Trust can suspend its involvement in the mediation to remedy this threat of ongoing violation. Representatives of the Parties with settlement authority will attend mediation sessions as required by the mediator;

C. Confidentialitv. All information presented to the mediator shall be deemed confidential and shall be disclosed by the mediator only with the consent of the Parties or their respective counsel. The mediator shall not be subject to subpoena by any Party in any subsequent litigation;

D. Time Period. Neither Party shall be obligated to continue the mediation process beyond a period of 60 days from the date of receipt of the initial request or if the mediator concludes that there is no reasonable likelihood that continuing mediation will result in a mutually agreeable resolution of the dispute. The Parties shall equally share and each bear 50% of the mediator's fees.

12. Costs, Liabilities, Taxes, and Environmentai Compliance.

12.1. Costs, Legal Requirements and Liabilities. Grantor retains all responsibilities and obligations and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the Property, including the payment of property and other taxes related to the Property, and maintenance of liability insurance 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 incurred by Grantor. Nothing in this Easement Deed shall be construed or interpreted as prohibiting Grantor from obtaining loans secured by deeds of trust encumbering the Property, provided any such deeds of trust are subordinate to this Easement Deed, and shall encumber the entire Property;

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12.2. Control. Nothing in this Grant shall be construed as giving rise, in the absence of a judicial decree, to any right or ability in the Trust to exercise physical or managerial control over the day-to-day operations of the Property, or any of Grantor's activities on the Property, or otherwise to become an operator with respect to the Property within the meaning of The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA"), and any Colorado state law counterpart;

12.3. Hold Harmless. Grantor shall hold harmless, indemnify and defend the Trust and its members, directors, officers, employees, agents, and contractors and the heirs, personal representatives, successors, and assigns of each of them (collectively, the "Trust Parties") from and against all liabilities, including, 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) the violation or alleged violation of, or other failure to comply with, any state, federal, or local law, regulation, or requirement, including, without limitation, CERCLA, by any person other than any of the Trust Parties, in any way affecting, involving, or relating to the Property; ( c) the presence or release of hazardous or toxic substances in, on, from, or under the Property at any time, of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment, unless caused solely by any of the Trust Parties; ( d) payment of taxes imposed upon or incurred by the Property as a result of this Easement, including property taxes and the sale of income tax credits acquired as a result of this Easement ( e) tax benefits or consequences of any kind which result or do not result from entering into this Easement Deed; and (f) the obligations, covenants, representations, and warranties described herein;

12.4. Waiver of Certain Defenses. No action shall be commenced or maintained to enforce the terms of any building restriction described in this Easement Deed, or to compel the removal of any building or improvement, unless said action is commenced within four years from the date of discovery of the violation for which the action is sought to be brought or maintained. To the extent that any defense available to Grantor pursuant to C.R.S. §38-41-119 is inconsistent with the foregoing, Grantor waives that defense. Grantor waives the defenses of laches, estoppel and prescription with regard to the enforcement of all other tenns of this Easement Deed; and

12.5. Acts Beyond Grantor's Control. Nothing contained in this Easement Deed shall be construed to entitle the Trust to bring any action against Grantor for any injury to or change in the Property resulting from causes beyond Grantor's control or from any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Property resulting from such causes. Grantor is not responsible for acts of third parties not authorized to access the Property, but shall be responsible for all third parties, including guests or invitees, authorized by Grantor to access the Property.

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13. Extinguishment and Condemnation.

13.1. Extinguishment. The Parties agree that any changes in the economic viability of the uses permitted or prohibited by this Easement Deed, or changes to neighboring land and its use shall not be deemed circumstances justifying the tennination or extinguishment of the Easement. In addition, the inability of Grantor, or Grantor's heirs, successors or assigns, to implement any or all of the uses permitted under this Easement Deed shall not impair the validity of the Easement or this Easement Deed, or be considered grounds for termination or extinguishment of this Easement.

If circumstances arise in the future that render the purposes of this Easement impossible to accomplish, the Easement can only be tenninated or extinguished, in whole or in part, by judicial proceedings in a court of competent jurisdiction after the court has explored all options for importing other purposes for the Easement pursuant to the cy pres doctrine. Each Party shall promptly notify the other when it first learns of such circumstances. The amount of the proceeds to which the Trust shall be entitled, after the satisfaction of prior claims, from any sale, exchange, or involuntary conversion of all or any portion of the Property subsequent to such termination, shall be determined, unless otherwise provided by Colorado law at the time, in accordance with the Proceeds paragraph below;

13 .2. Condemnation. If all or any part of the Property is taken by exercise of the power of eminent domain or acquired by purchase in lieu of condemnation, whether by public, corporate, or other authority, so as to terminate the Easement in whole or in part, Grantor and the Trust shall act jointly to recover the full value of the interests in the Property subject to the taking or in-lieu purchase and all damages resulting therefrom. All expenses reasonably incurred by Grantor and the Trust in connection with the taking or in-lieu purchase shall be paid out of the amount recovered. The Trust's share of the balance of the amount recovered shall be determined by multiplying that balance by the percentage set forth in Proceeds paragraph below;

13.3. Proceeds. Grantor and the Trust stipulate that as of the date of this Easement Deed, they are each vested with a real property interest in the Property. The Parties further stipulate that the Trust's interest in the Easement has a value of seventy-five percent (75%) of the fair market value of the Property from this date forward, and such percentage interest shall remain constant in relation to any future fair market value of the Property. Such percentage interest shall be used only for determining the Tmst' s proportion of proceeds from any payment of damages or action resulting from circumstances described in the Extinguishment and Condemnation paragraphs above. The Parties agree that the value of any improvements to the Property made by Grantor after the date of this Easement Deed is reserved to Grantor. The Parties further agree that to the extent possible, any proceeds paid to the Trust as a result of this Section shall be used exclusively for purposes of restoration or enhancement of the Conservation Values on the Property. If it is not possible to use all of the Trust's proceeds in this manner, such as ifthe entire Property is condemned or Easement terminated, the Trust may elect to apply its proceeds to another purpose within its mission.

14. Assignment. In the event the Trust is no longer able to carry out its duties and obligations under this Easement Deed, or if circumstances change so that another similar organization is

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better able to carry out such duties and obligations, the Trust may elect to transfer the Easement with notice given to Granter, provided that the Trust may assign its rights and obligations under this Easement Deed only to an organization that is (a) a qualified organization at the time of transfer under Section 170(h) of the Internal Revenue Code of 1986, as amended (or any successor provision then applicable), and the applicable regulations promulgated thereunder; (b) authorized to acquire and hold conservation easements under Colorado law; and ( c) charged with a mission similar to that of the Trust. As a condition of such transfer, the Trust shall require the transferee to expressly agree, in writing, to carry out and uphold the purposes of the Easement and the Conservation Values and otherwise assume all of the obligations and liabilities of the Trust set forth herein or created hereby. After such transfer, the Trust shall have no further obligation or liability under this Easement Deed.

15. Subsequent Transfers. Granter agrees to notify any pa..rty who may purchase, lease, or otherwise hold interest in this Property of the existence and terms of this Easement Deed, and to provide a copy of the Easement Deed and the Baseline Documentation to such party if requested. Granter further agrees to give notice to the Trust of the transfer of any such interest prior to transfer. The Trust shall be available for and welcome the opportunity to meet with any prospective buyers or transferees of the Property to explain the terms of this Easement Deed to potential new owners prior to or after sale closing, or to answer any questions or concerns related to this Easement, the Easement Deed, or any of its supporting documentation, including the Baseline Documentation.

In addition, at any time Grantor transfers the Property to a third party, that party shall pay a fee of $100.00 to the Trust to cover administrative costs associated with the transfer as well as put the third party purchaser on notice of the terms of this Easement Deed. The failure of Grantor to perfonn any act required by this paragraph shall not impair the validity of this Easement or Easement Deed or limit enforceability of either in any way.

16. Notices. Any communication that either Party desires or is required to give to the other shall be in writing and served personally or sent by first class mail, postage prepaid, addressed as follows or to such other address as either party from time to time shall designate by written notice to the other:

To Granter: The Berkeley Family Limited Partnership 4001 County Road 114 Glenwood Springs, CO 81601

To the Trust: Aspen Valley Land Trust 320 Main Street, Suite 204 Carbondale, CO 81623

17. Recordation. The Trust shall record this instrument in timely fashion in the official records of Garfield County, Colorado and may re-record it at any time as may be required to preserve its rights in this Easement and Easement Deed.

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18. Amendment. If circumstances arise under which an amendment to this Easement Deed would be appropriate to promote the purposes of the Easement, Grantor and the Trust may jointly amend this Easement Deed. However, the Trust is under no obligation to amend this Easement Deed, and may decline any amendment in its sole discretion. Any amendment must be consistent with, and protect and preserve, the purposes of the Easement and the Conservation Values and may not affect the Easement's perpetual duration. Any amendment must be in writing, signed by all the Parties, and recorded in the records of the Clerk and Recorder of the appropriate Colorado County. Correction deeds to correct factual mistakes or typographical or clerical errors may be made at the discretion of the Trust. No amendment shall be allowed that affects the qualification of this Easement or the status of the Trust under any applicable laws, including C.R.S. Section 38-30.5-101, et seq., or Section 170(h) of the Code or any regulations promulgated thereunder. No amendment shall be permitted that will confer a private benefit to Grantor or any other individual or entity (see IRS Reg. 1.170A-14(h)(3)(i)) greater than the benefit to the general public, or that will result in private inurement to a Board member, staff or contract employee of the Trust (see IRS Reg. 1.501(c)(3)-l(c)(2)).

19. Subordination. The Property is not subject to any mortgages or liens.

20. General Provisions.

20.1 Exhibits. The following Exhibits are attached to and incorporated by reference into this Easement Deed:

Exhibit A: Property Legal Descriptions, Exhibit B: Survey of Fifth Donation Parcel, Exhibit C: Survey of Property, Exhibit D: Map of Agricultural Use Boundaries, Exhibit E: Water Rights;

20.2 Definitions. The terms "Grantor" and "the Trust," wherever used herein, and any pronouns used in place of those terms, shall refer to, respectively, Grantor and its heirs, personal representatives, executors, administrators, successors and assigns, and the Trust, its successors and assigns. The term "Property," wherever used herein, shall refer to the land described in Exhibit A and water rights combined. The term "Water Rights," wherever used herein, shall refer to the water rights alone, as described in Exhibit E. The terms "Easement" and "Conservation Easement in Gross" refer to the immediately vested interest in real property defined by Colorado Revised Statutes§§ 38-30.5-101 et seq. The term "Easement Deed" refers to this legal document, consisting of the rights and restrictions enumerated herein, by which said Easement is granted;

20.3. Controlling Law. The interpretation and performance of this Easement and Easement Deed shall be governed by the laws of the State of Colorado;

20.4. Liberal Construction. This Easement Deed shall be liberally construed in favor of the grant to effect the purposes of the Easement and the policy and purpose of C.R.S. §38-30.5-101 et seq. If any provision in this instrument is found to be ambiguous, an interpretation

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consistent with ensuring continuation of the purposes of the Easement and the preservation and protection of the Conservation Values that would render the provision valid shall be favored over any interpretation that would render it invalid. The common law rules of disfavoring restrictions on the use of real property and construing restrictions in favor of the free and unrestricted use of real property shall not apply to interpretations of this Easement Deed or to disputes between the Parties concerning the meaning of particular provisions of this Easement Deed;

20.5. Severability. If any provision of this Easement Deed, or the application thereof to any person or circumstance, is found to be invalid, the remainder of the provisions of this Easement Deed shall be deemed severable and remain in full force and effect;

20.6. Entire Agreement. This instrument sets forth the entire agreement between the Parties with respect to the Easement Deed and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Easement Deed, all of which are merged herein;

20.7. No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Grantor's title in any respect

20.8. Joint and Several Obligation. The obligations imposed by this Deed upon Grantor shall be joint and several. If the Property's ownership is by a single entity consisting of multiple parties including shareholders, partners, or members, that entity is required to include in its operating agreement, bylaws, or other documents setting forth the rights and responsibilities of the entity, the right to assess such shareholders, partners, or members for any monetary or other obligations set forth in this Easement. Grantor shall provide a copy of such documentation at any time upon The Trust's request.

20.9. Successors. The covenants, terms, conditions, and restrictions of this Easement Deed shall be binding upon, and inure to the benefit of, the Parties hereto and Grantor's respective personal representatives, heirs, successors, transferees, and assigns, and the Trust's successors, transferees, and assigns, and shall continue as a servitude running in perpetuity with the Property;

20.10. Termination of Rights and Obligations. A Party's rights and obligations under this Easement Deed terminate upon transfer of the Party's interest in the Easement or the Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer;

20.11. Captions. The captions in this instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon construction or interpretation;

20.12. Counterparts. The Parties may execute this instrument in two or more counterparts, which shall, in the aggregate, be signed by all the Parties; each counterpart shall be deemed an original instrument as against any Party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling;

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20.13. Merger. Unless the Parties expressly state that they intend a merger of estates or interests to occur, no merger shall be deemed to have occurred hereunder or under any document executed in the future affecting this Easement or this Easement Deed;

20.14. Acceptance of Gift. The Trust acknowledges receipt and acceptance of this Easement encumbering the Property described herein, for which no goods or services were provided; and

20.15. Development Rights. Grantor hereby grants to the Trust all development rights associated with the Property except as specifically reserved herein for the limited purpose of ensuring that such rights are forever terminated and extinguished, and may not be used by Grantor, the Trust, or any other party.

SIGNATURES ON FOLLOWING PAGES

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IN WITNESS WHEREOF, Grantor and the Trust have executed this Deed of Conservation Easement as of the date first written above.

GRANT OR

The Berkeley Family LLLP, a/k/a The Berkeley Family Limited Partnership, a Colorado limited liability limited partj!.er~

~ --- / ... ------~- ,-:--

STATE OF COLORADO ) ) SS.

COUNTY OF GARFIELD )

The foregoing instrument was acknowledged before me this Z 2~ day of .S~ 2008, by Michael E. Berkeley as General Partner of The Berkeley Family LLL , a Colorado limited liability limited partnership, as Grantor.

WITNESS my hand and official seal. [SEAL]

BETHANY A COLLINS Notary Public

State of Colorado

My Commission Expires November 07. 2011

otarYPllbi My commission expires: \ \ \3: I ZD I )

23

ACCEPTED by the TRUST:

ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation,

By:. /[1.ftAL foe tu a,,, __ Martha Cochran, Executive Director

STATE OF COLORADO ) ) SS.

COUNTY OF GARFIELD )

· s-r /"\ I The foregoing instrument was acknowledged before me this _f _day of u c--fo io...e.r--

2008, by Martha Cochran as Executive Director of ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation.

WITNESS my hand and official seal. [SEAL]

j SUZANNE STEPHENS j Notary Public ~ State of Colorado t:;;;w;;;;;;;;;;;;;;;;;;;;;iiiiiiiiiiOiiiiiiii--iiiiiiiiiiOiiiiiiii----..:.t

My Commission Expires November 17. 2008

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Exhibit A Legal Descriptions

Legal Description of First Donation Parcel

A PARCEL OF LAND SITUATED IN LOTS 5 AND 6 SECTION 32, AND LOTS 7, 8, 9, AND IO SECTION 33, TOWNSHIP 6 SOUTH, RANGE 88 WEST OF THE SIXTH PRINCIPAL MERIDIAN, COUNTY OF GARFIELD, STATE OF COLORADO, SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF SAID LOT 6, A BLM BRASS CAP IN PLACE, THE POINT OF BEGINNING; THENCE NOI 0 43'36"E ALONG THE WESTERLY BOUNDARY OF SAID LOT 6 A DISTANCE OF I,260.42 FEET; THENCE LEAVING SAID WESTERLY BOUNDARY S89°05'5I "E A DISTANCE OF I,I29.94 FEET; THENCE ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF I,320.00 FEET AND A CENTRAL ANGLE OF I I 0 I4'36" A DISTANCE OF 259.03 FEET (CHORD BEARS S83°28'33"E 258.6I ');;THENCE SOI 0 58'08"W, A DISTANCE OF I,281.45 FEET TO THE SOUTHEAST CORNER OF SAID LOT 9; THENCE N87°I0'45"W, ALONG THE SOUTHERLY BOUNDARY OF LOT 9 AND LOT 6 A DISTANCE OF I,382.36 FEET TO THE POINT OF BEGINNING, SAID PARCEL CONTAINING 40.7589 ACRES, MORE OR LESS.

Legal Description of Second Donation Parcel

A PARCEL OF LAND SITUATED IN GOV'T LOT 7 AND 10, SECTION 33, TOWNSHIP 6 SOUTH, RANGE 88 WEST OF THE SIXTH PRINCIPAL MERIDIAN, COUNTY OF GARFIELD, STATE OF COLORADO; SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHWEST CORNER OF SAID GOV'T LOT IO, A 3-I/4" ALUMINUM CAP L.S. #I9598 IN PLACE, THE POINT OF BEGINNING; THENCE NOI 0 58'08"E ALONG THE WESTERLY BOUNDARY OF SAID GOV'T LOT 10 AND 7 A DISTANCE OF I,337.24 FEET TO THE NORTHWEST CORNER OF SAID GOV'T LOT 7; THENCE S89°I2'4I "E ALONG THE NORTHERLY BOUNDARY OF SAID GOV'T LOT 7 A DISTANCE OF I,308.4I FEET TO THE NORTHEAST CORNER OF SAID GOV'T LOT 7; THENCE SOI 0 58'10"W ALONG THE EASTERLY BOUNDARY OF SAID GOV'T LOT 7 A DISTANCE OF 6I6.22 FEET; THENCE LEAVING SAID EASTERLY BOUNDARY S5I 0 30'54"W A DISTANCE OF 301.I9 FEET TO A POINT ON THE NORTHERLY RIGHT­OF-WAY OF A 60' WIDE RIGHT-OF-WAY; THENCE LEAVING SAID NORTHERLY RIGHT-OF-WAY S54°47'34"W 60.07 FEET TO A POINT ON THE SOUTHERLY RIGHT­OF-WAY OF A 60'WIDE RIGHT-OF-WAY; THENCE LEAVING SAID SOUTHERLY RIGHT-OF-WAY S59°33'05"W A DISTANCE OF 3I 7.38 FEET; THENCE S67°34'26"W A DISTANCE OF 837.98 FEET TO THE POINT OF BEGINNING; SAID PARCEL OF LAND CONTAINING 30.870 ACRES, MORE OR LESS.

25

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~ l~1l ~I~ 11111 Reception~: 756747 10/03/2008 09:43:18 RM Jean Rlberico 26 of 32 Rec Fee:$161 .00 Doc Fee:0.00 GRRFIELD COUNTY CO

Legal Description of Third Donation Parcel

A PARCEL OF LAND SITUATED IN GOV'T LOT 7, 10, 11, 16 AND 17, SECTION 33, TOWNSHIP 6 SOUTH, RANGE 88 WEST OF THE SIXTH PRINCIPAL MERIDIAN, COUNTY OF GARFIELD, STATE OF COLORADO; SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHWEST CORNER OF SAID GOV'T LOT 10, A 3-1/4" ALUMINUM CAP L.S. #19598 IN PLACE, THE POINT OF BEGINNING;; THENCE N67°34'26"E A DISTANCE OF 837.98 FEET; THENCE N59°33'05"E A DISTANCE OF 317.38 FEET; THENCE N54°47'34"E A DISTANCE OF 60.07 FEET; THENCE N51°30'54"E A DISTANCE OF 301.19 FEET; THENCE SOl 0 58'10"W A DISTANCE OF 222.01 FEET TO THE NORTHEAST CORNER OF GOV'T LOT 10; THENCE S88°25'59"E A DISTANCE OF 627.99 FEET; THENCE S20°33'32"W A DISTANCE OF 438.85 FEET; THENCE ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 270.00 FEET AND A CENTRAL ANGLE OF 45°51'20", A DISTANCE OF 216.09 FEET (CHORD BEARS S87°38'19"W A DISTANCE OF 210.37 FEET); THENCE S64°42'39"W A DISTANCE OF 100.00 FEET; THENCE ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 1,020.02 FEET AND A CENTRAL ANGLE OF 27°48'46", A DISTANCE OF 495.14 FEET (CHORD BEARS S78°37'03"W A DISTANCE OF 490.30 FEET); THENCE S49°07'22"W A DISTANCE OF 104.94 FEET; THENCE S31°21'24"W A DISTANCE OF 226.02 FEET; THENCE WEST A DISTANCE OF 833.13 FEET; THENCE NOl 0 58'08"E A DISTANCE OF 357.41 FEET TO THE POINT OF BEGINNING; SAID PARCEL CONTAINING 23.116 ACRES, MORE OR LESS.

Legal Description of Fourth Donation Parcel

A PARCEL OF LAND SITUATED IN GOV'T LOT 11, 16 AND 17, SECTION 33, TOWNSHIP 6 SOUTH, RANGE 88 WEST OF THE SIXTH PRINCIPAL MERIDIAN, COUNTY OF GARFIELD, STATE OF COLORADO; SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCING AT THE NORTHWEST CORNER OF SAID GOV'T LOT 11, A 2-1/2" ALUMINUM CAP L.S. #5933 IN PLACE; THENCE S88°25'59"E ALONG THE NORTHERLY BOUNDARY OF SAID GOV'T LOT 11 A DISTANCE OF 627.99 FEET TO THE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID NORTHERLY BOUNDARY S88 °25'59"E A DISTANCE OF 235. 92 FEET; THENCE LEAVING SAID NORTHERLY BOUNDARY S06°54'21"E A DISTANCE OF 399.02 FEET; THENCE N83°05'39"E A DISTANCE OF 99.43 FEET; THENCE 814°59'12'~ A DISTANCE OF 468.54 FEET; THENCE ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 830.00 FEET AND A CENTRAL ANGLE OF 04°43'37", A DISTANCE OF 68.47 FEET (CHORD BEARS Sl2°37'23"W A DISTANCE OF 68.46 FEET); THENCE S78°36'53"W A DISTANCE OF 226.51 FEET; THENCE N89°04'00"W A DISTANCE OF 61.29 FEET; THENCE S79°42'39"W A DISTANCE OF 231.38 FEET; THENCE

26

Nll 0 14'23"W A DISTANCE OF 229.46 FEET; THENCE N25°17'2l"W A DISTANCE OF 34.49 FEET; THENCE S87°ll'25"W A DISTANCE OF 332.21 FEET; THENCE ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 1620.00 FEET AND A CENTRAL ANGLE OF 00°34'12", A DISTANCE OF 16.11 FEET (CHORD BEARS S03°05'4l"E A DISTANCE OF 16.11 FEET); THENCE S02°48'35"E A DISTANCE OF 182.79 FEET; THENCE ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 972.34 FEET AND A CENTRAL ANGLE OF 04°07'02", A DISTANCE OF 69.87 FEET (CHORD BEARS S04 ° 52'06"E A DISTANCE OF 69. 8 6 FEET); THENCE S83°03'56"W A DISTANCE OF 253.37 FEET; THENCE WEST A DISTANCE OF 1081.85 FEET TO A POINT ON THE WESTERLY BOUNDARY OF GOV'T LOT 17; THENCE NOl 0 58'08"E ALONG SAID WESTERLY BOUNDARY A DISTANCE OF 233.37 FEET; THENCE LEAVING SAID WESTERLY BOUNDARY EAST A DISTANCE OF 833.13 FEET; THENCE N31°21'24"E A DISTANCE OF 226.02 FEET; THENCE N49°07'22"E A DISTANCE OF 104.94 FEET; THENCE ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 1,020.02 FEET AND A CENTRAL ANGLE OF 27°48'46", A DISTANCE OF 495.14 FEET (CHORD BEARS N78°37'03"E A DISTANCE OF 490.30 FEET); THENCE N64°42'39"E A DISTANCE OF 100.00 FEET ; THENCE ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 270.00 FEET AND A CENTRAL ANGLE OF 45°51'20", A DISTANCE OF 216.09 FEET (CHORD BEARS N87°38'19"E A DISTANCE OF 210.37 FEET); THENCE N20°33'32"E A DISTANCE OF 438.85 FEET TO THE POINT OF BEGINNING; SAID PARCEL CONTAINING 22.416 ACRES, MORE OR LESS.

Legal Description of Fifth Donation Parcel

A PARCEL OF LAND SITUATED IN GOV'TLOT 11, 12, 15, 16 AND 17, SECTION 33, TOWNSHIP 6 SOUTH, RANGE 88 WEST OF THE SIXTH PRINCIPAL MERIDIAN, COUNTY OF GARFIELD, STATE OF COLORADO; SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCING AT THE NORTHWEST CORNER OF SAID GOV'T LOT 11, A 2-1/2" ALUMINUM CAP L.S. #5933 IN PLACE; THENCE S88°25'59"E ALONG THE NORTHERLY BOUNDARY OF SAID GOV'T LOT 11 A DISTANCE OF 863.91 FEET TO THE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID NORTHERLY BOUNDARY S88°25'59"E A DISTANCE OF 190.19 FEET; THENCE LEAVING SAID NORTHERLY BOUNDARY SOl 0 34'01 "WA DISTANCE OF 1014.20 FEET; THENCE S88°25'59"E A DISTANCE OF 171.09 FEET; THENCE S44°05'20"W A DISTANCE OF 248.89 FEET; THENCE N24°17'21 "WA DISTANCE OF 48.52 FEET; THENCE S65°42'39"W A DISTANCE OF 250.06 FEET; THENCE S73°14'59"W A DISTANCE OF 60.52 FEET; THENCE S65°42'39"W A DISTANCE OF 231.99 FEET; THENCE N24°17'21"W A DISTANCE OF 20.03 FEET; THENCE S58°39'04"W A DISTANCE OF 286.85 FEET; THENCE N31°20'56"W A DISTANCE OF 152.98 FEET; THENCE ALONG THE ARC OF

27

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CURVE TO THE RIGHT HAVING A RADIUS OF 912.34 FEET AND A CENTRAL ANGLE OF 05°11 138", A DISTANCE OF 82.70 FEET, (CHORD BEARS N28°45107"W A DISTANCE OF 82.68 FEET); THENCE S63°501l l "WA DISTANCE OF 310.01 FEET; THENCE S90°00'00"W A DISTANCE OF 1,214.88 FEET TO A POINT ON THE WESTERLY BOUNDARY OF GOV'T LOT 17; THENCE NOl 0 58 108"E ALONG SAID WESTERLY BOUNDARY A DISTANCE OF 391.23 FEET; THENCE LEAVING SAID WESTERLY BOUNDARY N90°00'00"E A DISTANCE OF 1,081.85 FEET; THENCE N83°03 156"E A DISTANCE OF 253.37 FEET; THENCE ALONG THE ARC OF A NON-TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 972.34 FEET AND A CENTRAL ANGLE OF 04°07'02", A DISTANCE OF 69.87 FEET, (CHORD BEARS N04°52106"W A DISTANCE OF 69.86 FEET); THENCE N02°48135"W A DISTANCE OF 182.79 FEET; THENCE ALONG THE ARC OF CURVE TO THE LEFT HAVING A RADIUS OF 1,620.00 FEET AND A CENTRAL ANGLE OF 00°34112", A DISTANCE OF 16.11 FEET, (CHORD BEARS N03°05141 "WA DISTANCE OF 16.11 FEET); THENCE N87°11 125"E A DISTANCE OF 332.21 FEET; THENCE S25°17121"E A DISTANCE OF 34.49 FEET; THENCE Sl 1°14123"E A DISTANCE OF 229.46 FEET; THENCE N79°42'39"E A DISTANCE OF 231.38 FEET; THENCE S89°04100"E A DISTANCE OF 61.29 FEET; THENCE N78°36153"E A DISTANCE OF 226.51 FEET; THENCE ALONG THE ARC OF A NON-TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 830.00 FEET AND A CENTRAL ANGLE OF 04°43 137", A DISTANCE OF 68.47 FEET, (CHORD BEARS Nl2°37123"E A DISTANCE OF 68.46 FEET); THENCE N14°59112"E A DISTANCE OF 468.54 FEET; THENCE S83°05'39"W A DISTANCE OF 99.43 FEET; THENCE N06°54'21 "WA DISTANCE OF 399.02 FEET; TO THE POINT OF BEGINNING; SAID PARCEL CONTAINING 25.921 ACRES, MORE OR LESS.

28

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EXHIBITB Survey of Fifth Donation Parcel

CONSERVATION EASEMENT EXHIBIT - 2008 LAKE SPRINGS P. U.D. ---r ----,---3!:1!i~1~,:;;:g..l·o~s'-"'·E ___ P_ A_G_E __ ~0_._1 _ _ _ _____ ---+-

!

HIGH COUNTRY ENGINEERING, INC. CONSEilVA.TION EASEMENT

FOR YEAR 2008

LAKE SPRINGS P.U.D.

CHECKED BY'

DATE: 05/06/ca

i I

1"=300'

PROJECT No: 2041025.01

1 OF2

J

9 1617BLAKEAVENUE1 6'1'£ 101

GLENWOOD SPRINGS, CO B 160 I PHONE (970) 945-867& FAX l'.910) 945iZ55l5

www.HCl!NG,COM

141NVERNESS DRIVE EAST, STEF·l20 ENGl.£WOOD, CO 8011;2.

PHONE (303} 925-0544 FAX (303) 9250547 EXHIBIT-CONSERVA110N.::ASE-S.17-08,0'A'G

Full size survey on file with both parties

29

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EXHIBIT C Survey of Property

·----1--

, ;

I

CURVE Cl C2 CJ C4 C5 Cii

RADIUS DELT4 1020.02 21·4e"46 .. 270,00 45'51'20"

1620.00 0'34'12" 972.34 4"07'02 .. 830.00 4•43•37• 912.34 5,t'.38"

HIGH COUNTRY ENGINEERING, INC.

-

• • 1517BL.AKEA.VENUE,5TE 101 GLD.fWOOb&PRINGS,C081B01

PHONE (970) ~0713 FAX (9'10) 945-2555 WWW Hgtto COM

l4fNYERNESSORIVEEA.ST1 STE:F·1ZO ENGLEWOOD, CO BOt ta

PHONE (303)92&0844 P'AXC303l92.S-0547

CURVE TABLE: LENGTH TANGENT

495.14 25255 216.09

lli.11 69.87 68.47 82.70

CONSERVATION EASEMENTS FOR YEARS 20042008

LAKE SPRJNGS P.U.D.

CHORD 490.30 210.37

16.11

82.65

CHECKIDB'r.

05105106

1"1:::500•

PRCJECTNo: 2041025.01

EXHl8rT.CONSERVA.TION·2004-200BOWG

Full size survey on file with both parties

30

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Detail of Building Compound

Generalized Ecosystem Lake Springs Ranch PUD Phase II - Baseline Data Inventory

Prepared by: TG Malloy Con.<ulting, LLC 402 Park Drive Glc:mvood Springs, CO 81601

Phone: 970-9.J5-08J2

Preparei/ for: The Berkely Fnmily Limited Pnrtmmhip 400 I Coumy Rund 114 Glenwood Springs, CO R 160 l

Date: June, 2005

Map Legend

Dcnlo11cd Land 1 L-1•11.rm et1ulpmenl 1tor.n1.'l! 12- Cnmmerdnl hnlldlnl!\ 1.1- RM!d~nliul n~

Agricultural lund 11 - Trrl~atcd iurr~n1u produ~lon

Shruhlnnds .11 - S:tgebruih shruh\11.nd\

\Vctlands und \Vatcrs of the LI. S. 41 - rulusilnc wc1':1.11ds ('1-tlltmd mc:udol'\) 42- I.iicunrlnc.• •):steun {J)ondsorfakc.~)

Notes: l} lllmt11J.k1111.11ntl U.C.11t.n1 nn thh mlt(I ;ur baud"" .. ~uruy (lnp11IT«l 11)" lll~lt Cuuntry F.nr;inn-rini:, lnr,

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~ Scale: 1" = 5110'

Exhibit 7

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EXHIBIT E Water Rights

The "Water Rights" include, without limitation, all of the Grantor's right, title and interests in any and all water and water rights beneficially used on the Property, and all canals, ditches, laterals, headgates, springs, ponds, reservoirs, water allotments, water shares and stock certificates, contracts, units, wells, easements and rights of way, and irrigation equipment associated therewith. The Water Rights include surface water rights and groundwater rights, whether tributary or nontributary, decreed or undecreed, and specifically the Grantor's interest in:

Water Right Name Structure Use Adjudication Appropriation Amount

Type Type Date Date Van Cleve No. 1 Ditch Ditch I 05/11/1889 09/05/1882 0.875 cfs Van Cleve No. 2 Ditch Ditch I 05/11/1889 05/15/1885 0.60 cfs Van Cleve No. 2 Ditch, Ditch I 05111/1889 05/15/1885 1.25 cfs First Enlargement

32