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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 08/20/2019 - SECOND READING OF ORDINANCE NO. 098, 2019, AUTHORIAgenda Item 6 Item # 6 Page 1 AGENDA ITEM SUMMARY August 20, 2019 City Council STAFF David Myers, Land Conservation Manager Tawnya Ernst, Real Estate Specialist III John Stokes, Natural Resources Director Ingrid Decker, Legal SUBJECT Second Reading of Ordinance No. 098, 2019, Authorizing the Execution of First and Second Amended and Restated Conservation Easements on the Hazelhurst Property and Assignment of a Conservation Easement to Larimer County. EXECUTIVE SUMMARY This Ordinance, unanimously adopted on First Reading on July 16, 2019, authorizes the execution of a First Amended and Restated Conservation Easement on the Hazelhurst property located at 2887 West Trilby Road. The amended and restated conservation easement will allow for the subdivision of the 45-acre property into two parcels: a 5-acre parcel to be retained by Glenn and Margaret Hazelhurst and a 40-acre parcel to be purchased in fee by the Natural Areas Department. Staff is also seeking authorization to subsequently enter into a Second Amended and Restated Conservation Easement that will split the Conservation Easement into two agreements, one that will apply to the 5-acre tract the Hazelhursts retain and a the other encumbering the 40-acre parcel purchased by the City, so that the conservation easement can be managed separately on each parcel. The conservation easement on the City's parcel would then be assigned to and held by Larimer County through its Open Lands department. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading. ATTACHMENTS 1. First Reading Agenda Item Summary, July 16, 2019 (w/o attachments) (PDF) 2. Ordinance No. 098, 2019 (PDF) Agenda Item 10 Item # 10 Page 1 AGENDA ITEM SUMMARY July 16, 2019 City Council STAFF David Myers, Land Conservation Manager Tawnya Ernst, Real Estate Specialist III John Stokes, Natural Resources Director Ingrid Decker, Legal SUBJECT First Reading of Ordinance No. 098, 2019, Authorizing the Execution of First and Second Amended and Restated Conservation Easements on the Hazelhurst Property and Assignment of a Conservation Easement to Larimer County. EXECUTIVE SUMMARY The purpose of this item is to authorize the execution of a First Amended and Restated Conservation Easement on the Hazelhurst property located at 2887 West Trilby Road. The amended and restated conservation easement will allow for the subdivision of the 45-acre property into two parcels: a 5-acre parcel to be retained by Glenn and Margaret Hazelhurst and a 40-acre parcel to be purchased in fee by the Natural Areas Department. Staff is also seeking authorization to subsequently enter into a Second Amended and Restated Conservation Easement that will split the Conservation Easement into two agreements, one that will apply to the 5-acre tract the Hazelhursts retain and a the other encumbering the 40-acre parcel purchased by the City, so that the conservation easement can be managed separately on each parcel. The conservation easement on the City's parcel would then be assigned to and held by Larimer County through its Open Lands department. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION The original 45-acre Hazelhurst Conservation Easement (Hazelhurst CE) was granted to the City on October 31, 2005. The Hazelhurst property was conserved in order to help provide a buffer to the adjacent Coyote Ridge Natural Area and to protect the viewshed along Taft Hill Road and within the Loveland Community Separator area. The property’s grasslands support a variety of bird and wildlife species. In late 2018 following the annual conservation easement monitoring visit, the Hazelhursts informed staff they were intending to sell their property. Staff decided to take the opportunity to make an offer to purchase fee title to 40 acres of the property as an addition to Coyote Ridge Natural Area. In order to separate the 45-acre property into two formal, legal parcels, the conservation easement must be amended and restated to allow said subdivision (the “First Amended and Restated Conservation Easement”). Natural Areas staff is taking the property through the County’s minor land division process in order to obtain formal approval at the County level. Once the First Amended and Restated Conservation Easement is recorded, and the subdivision approved, a new plat will be recorded. ATTACHMENT 1 Agenda Item 10 Item # 10 Page 2 At that time, the City will purchase the 40 acres. Two Second Amended and Restated Conservation Easement documents, one for each parcel, would then be executed to split the conservation easement between the two parcels and allow each one to be managed separately. The City will assign a conservation easement to Larimer County Open Lands so that it does not hold the conservation easement on the same parcel it owns. The Hazelhursts will retain the 5-acre parcel subject to a conservation easement that will still be held by the City and will only encumber that 5 acres. CITY FINANCIAL IMPACTS Financial impact will be approximately $237,500 to purchase the 40 acres, plus minor administrative costs to amend and restate the conservation easement. The City will not charge the County for the conveyance of the conservation easement on the 40 acre parcel because the County is agreeing to hold the conservation easement at the City’s request to facilitate the City’s purchase of the 40 acre parcel, and the County will assume the costs and responsibilities of monitoring and enforcing the conservation easement on the City’s parcel at its own expense. BOARD / COMMISSION RECOMMENDATION The Land Conservation and Stewardship Board has been kept informed and is in support of this acquisition. At its July 10, 2019 meeting, the Larimer County Stewardship Board recommended Council approve the conservation easement amendments. (Attachment 3) ATTACHMENTS 1. Vicinity Map (PDF) 2. Aerial Map (PDF) 3. Land Conservation and Stewardship Board Meeting Minutes, July 10, 2019 (Draft) (PDF) -1- ORDINANCE NO. 098, 2019 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE EXECUTION OF FIRST AND SECOND AMENDED AND RESTATED CONSERVATION EASEMENTS ON THE HAZELHURST PROPERTY AND ASSIGNMENT OF A CONSERVATION EASEMENT TO LARIMER COUNTY WHEREAS, in 2005 Glenn and Margaret Hazelhurst (“Hazelhursts”) conveyed to the City a conservation easement (the “Hazelhurst CE”) on a 45-acre parcel of land they own southwest of the intersection of Taft Hill Road and Trilby Road (the “Property”); and WHEREAS, the City conserved the Property to help provide a buffer to the adjacent Coyote Ridge Natural Area, to protect the viewshed along Taft Hill Road and within the Loveland Community Separator area, and to preserve wildlife habitat; and WHEREAS, the Hazelhursts wish to sell, and the City’s Natural Areas Department (NAD) wishes to purchase, 40 acres of the Property (“Parcel B”) with the Hazelhursts retaining 5 acres of the Property that has their home on it (“Parcel A”) and an access easement across Parcel B; and WHEREAS, the Hazelhurst CE does not currently permit subdivision of the Property; and WHEREAS, in December 2018 the City entered into an agreement to purchase Parcel B from the Hazelhursts, subject to the City Council’s approval of amendments to the Hazelhurt CE that would permit subdivision of the Property into Parcel A and Parcel B and also allow the conservation easement to be managed separately on each Parcel if either Parcel is sold; and WHEREAS, a draft of a proposed First Amended and Restated Conservation Easement between the City and Hazelhursts is attached hereto as Exhibit “A” and incorporated herein by reference; and WHEREAS, so that the City would not end up owning both the land and the conservation easement on Parcel B, City staff asked Larimer County, which has a long history of partnering with the City on land conservation, to accept an assignment from the City of the conservation easement on Parcel B once the City purchases it, while the City would continue to hold the conservation easement on Parcel A; and WHEREAS City staff is recommending that the City not charge the County for conveyance of the conservation easement on Parcel B as the County has agreed to hold the conservation easement to support the City’s natural areas program and objectives and the conveyance serves a bona fide public purpose under Section 23-114 of the City Code because:  The County’s assumption of the conservation easement promotes the general welfare and benefits the citizens of Fort Collins by allowing the City to purchase Parcel B and still maintain the conservation easement on that Parcel.  The County’s assumption of the conservation easement allows the City to purchase Parcel B, which supports Strategic Objective 4.10 of the City’s Strategic Plan, “Expand the -2- Natural Areas land portfolio while simultaneously maintaining existing lands and access to nature.”  The County will expend its own funds to monitor the conservation easement on Parcel B in the future.  The conveyance to the County will not result in any direct financial benefit to any private person or entity, except to the extent such benefit is only an incidental consequence and is not substantial relative to the public purpose being served; and  Conveying the conservation easement to the County for less than fair market value will not interfere with current City projects or work programs, hinder workload schedules or divert resources needed for primary City functions or responsibilities; and WHEREAS, as the uses on Parcel A and Parcel B would be different once the City purchases Parcel B, and the conservation easement on each Parcel would be managed by a different entity, the City, County and Hazelhurst propose further amending the Hazelhurst CE to split it into two separate agreements, one for each Parcel, and each tailored to its own Parcel, after the City purchases Parcel B; and WHEREAS, the forms of the two proposed Second Amended and Restated Conservation Easement agreements, one between the City and Hazelhursts for Parcel A and the other between the City and County for Parcel B, are attached hereto as Exhibits B-1 and B-2 and incorporated herein by reference; and WHEREAS, the NAD’s Conservation Easement Amendment Policy and Procedure requires that proposed amendments to conservation easements to which the City is a party be approved by the City Council by adoption of an ordinance after a public hearing; and WHEREAS, Section 23-111(a) of the City Code authorizes the City Council to sell, convey or otherwise dispose of any interest in real property owned by the City, provided that the City Council first finds, by ordinance, that such sale or other disposition is in the best interests of the City; and WHEREAS, at its regular meeting on July 10, 2019, the Land Conservation and Stewardship Board voted to recommend that the City Council approve the amendments to the Hazelhurst CE and the assignment of the conservation easement on Parcel B to Larimer County. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby makes and adopts the determinations and findings contained in the recitals set forth above. -3- Section 2. That the City Council hereby finds that the proposed amendments to the Hazelhurst CE and the conveyance of the conservation easement on Parcel B to Larimer County as provided herein are in the best interests of the City. Section 3. That the Mayor is hereby authorized to execute such documents as are necessary to amend and restate the Hazelhurst Conservation Easement to complete the transactions described herein, including assignment of the conservation easement on Parcel B to Larimer County, on terms and conditions consistent with this Ordinance and the attached exhibits, together with such additional terms and conditions as the City Manager, in consultation with the City Attorney, determines are necessary or appropriate to protect the interests of the City, including, but not limited to, any necessary changes to the legal descriptions of the Conservation Easement, as long as such changes do not materially increase the size or change the character of the property interest to be conveyed. Introduced, considered favorably on first reading, and ordered published this 16th day of July, A.D. 2019, and to be presented for final passage on the 20th day of August, A.D. 2019. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 20th day of August, A.D. 2019. __________________________________ Mayor ATTEST: _______________________________ City Clerk Draft 7/16/19 Updated 1/2016 FIRST AMENDED AND RESTATED DEED OF CONSERVATION EASEMENT HAZELHURST PROPERTY THIS FIRST AMENDED AND RESTATED DEED OF CONSERVATION EASEMENT (the “First Amended Conservation Easement” or “Deed”) is made this ____ day of ___________ 2019 (“Effective Date”), by GLEN T. HAZELHURST and MARGARET E. HAZELHURST having an address of 2887 West Trilby Road, Fort Collins, CO 80526 (“Grantor”), to CITY OF FORT COLLINS, COLORADO, a municipal corporation, having its address at 300 Laporte Avenue, Fort Collins, CO 80521 (“Grantee”). (Grantor and Grantee may be individually referred to as a “Party” and collectively referred to as “Parties.”) The following exhibits are attached and incorporated: Exhibit A - Legal Description of Property Exhibit B - Map of Property [including Building Envelopes and other areas designated in this Deed] Exhibit C - Baseline Acknowledgement Exhibit D - Parcel A Legal Description Exhibit E - Parcel B Legal Description Exhibit F - 5 acre Location Map Exhibit G - Encumbrances RECITALS A. Grantor is the sole owner in fee simple of approximately 45 acres of real property located in Larimer County, Colorado, encumbered by a conservation easement, more particularly described in Exhibit A and generally depicted on Exhibit B (the “Property”). B. The Property is encumbered by a Deed of Conservation Easement granted by Grantor to Grantee recorded on October 31, 2005 at Reception No. 20050092426 in the records of Larimer County, Colorado Clerk and Recorder (the “2005 Conservation Easement”). C. The Parties wish to restate, amend, supersede and replace the 2005 Conservation Easement and enter into a new conservation easement in order to update and refine certain terms within the Easement including but not limited to: permitting subdivision of the Property into two parcels (as defined below in Paragraph ___), facilitate management of the Easement on each of said parcels if one of the parcels is conveyed out of common ownership by treating the parcels separately for purposes of the Easement and allowing this Deed to be further amended to be split into two separate document, permitting an access easement across the larger parcel for benefit of the smaller parcel if one of the EXHIBIT A 2 parcels is conveyed out of common ownership, and allow for potential future public recreation (trail and trailhead). D. The Property possesses relatively natural habitat, scenic, open space, educational, and/or recreational values (collectively, “Conservation Values”) of great importance to Grantor, the people of Fort Collins and the surrounding Larimer County region and the people of the State of Colorado. In particular, the Property contains the following characteristics, which are also included within the definition of Conservation Values: i. Relatively Natural Habitat § 1.170A-14(d)(3). The Property's ecological values include a native biotic community of foothills grasslands that provide food, shelter, and migration corridors for several wildlife species, including, but not limited to, coyotes, foxes, mule deer, mountain bluebirds, golden eagles and red- tailed hawks. The grassland community present on the Property includes a globally rare plant community. The Property sustains a variety of bird species, including, but not limited to, horned larks, western meadowlarks, lark sparrows and grasshopper sparrows. Finally, the protection of the property contributes to the ecological viability of the adjacent Coyote Ridge Natural Area. ii. Open Space§ 1.170A-14(d)(4). The Property qualifies as open space because it will be preserved for the scenic enjoyment of the general public and will yield a significant public benefit. More specifically, preservation of the Property adds to the scenic character of the local rural landscape in which it lies because a large portion of the Property is visible to the general public from South Taft Hill Road, a paved, well- traveled road, which is actively utilized by residents of Fort Collins, Larimer County, and the State of Colorado. The Property is in the foreground of a view of the foothills of the Rocky Mountains from South Taft Hill Road, possesses aesthetic value as open space within the Fort Collins-Loveland Corridor, and helps provide a buffer of undeveloped land where there is a foreseeable trend of development in the vicinity of the Property in the near future, due primarily to the proximity of the Cities of Fort Collins and Loveland, which City Limits lie approximately one and one-half miles northeast and three miles southeast of the Property, respectively. The Property is adjacent to the Coyote Ridge Natural Area owned and managed by the City of Fort Collins. This public land includes a trail into the foothills directly west of the Property. As a result, much of the Property is highly visible from this public trail. Because of the immediate proximity to public open space, the Property provides a visual buffer and continuation of the open space already present to the west. There is a strong likelihood that development of the Property would lead to or contribute to degradation 3 of the scenic and natural character of the area. Preservation of the Property will add to the scenic character of the local landscape in which it lies, and will continue to provide an opportunity for the general public to appreciate the Property's scenic values. In particular, preservation of the open, undeveloped nature of the near ridgetop will preserve important scenic qualities of the Property. It should also be noted that the terms of the Conservation Easement do not permit a degree of intrusion or future development that would interfere with the essential scenic quality of the land. As such, preservation of the Property will continue to provide an opportunity for the general public to appreciate its scenic values. iii. Potential future public access for outdoor education and appropriate non- motorized trail recreation including hiking, wildlife watching, horseback riding, and mountain biking. iv. Conservation of this Property is consistent with the following federal, state, and local governmental policies: a) C.R.S. § 33-1-101, et seq., provides in relevant part that "it is the declared 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." b) C.R.S. § 33-2-101 to 33-2-106, which provide that “it is the policy of this state to manage all nongame wildlife, recognizing the private property rights of individual owners, for human enjoyment and welfare, for scientific purposes, and to ensure their perpetuation as members of ecosystems; that species or subspecies of wildlife indigenous to this state which may be found to be endangered or threatened within the state should be accorded protection in order to maintain and enhance their numbers to the extent possible; that this state should assist in the protection of species or subspecies of wildlife which are deemed to be endangered or threatened elsewhere.” c) C.R.S. § 33-10-101 to 33-10-114, which provide that “it is the policy of the State of Colorado that the natural, scenic, scientific, and outdoor recreation areas of this state are to be protected, preserved, enhanced, and managed for the use, benefit, and enjoyment of the people of this state and visitors of this state.” d) C.R.S. § 38-30.5-101, et seq., provides for the establishment of conservation easements to maintain land "in a natural, scenic, or open condition, or for wildlife habitat, or for agricultural, horticultural, wetlands, recreational, forest, or other use or condition consistent with the protection of open land, environmental quality or life-sustaining ecological diversity, or appropriate to the conservation and preservation 4 of buildings, sites, or structures having historical, architectural, or cultural interest or value." e) Fort Collins Natural Areas Master Plan (2014) states that “the mission of the Natural Areas Department is to conserve and enhance lands with natural resource, agricultural, and scenic values, while providing meaningful education and appropriate recreation opportunities” and establishes the conservation focus areas including the Foothills Corridor and Core Natural Areas which encompass the Property. E. Grantor intends that the Conservation Values be preserved and protected in perpetuity, and that the Deed prohibit any uses that would materially adversely affect the Conservation Values or that otherwise would be inconsistent with the Purpose (defined below). The Parties acknowledge and agree that uses expressly permitted by this Deed and Grantor’s current land use patterns on the Property, including without limitation those relating to grazing existing on the Effective Date (as defined in Section 27, below), do not materially adversely affect the Conservation Values and are consistent with the Purpose. F. By granting this Deed, Grantor further intends to (i) create a conservation easement interest that binds Grantor as the owner of the Property and also binds future owners of the Property; and (ii) convey to Grantee the right to preserve and protect the Conservation Values in perpetuity. G. Grantee is a political subdivision of the State of Colorado, a home-rule municipality, and a “qualified organization” under I.R.C. § 170(h) and Treas. Reg. § 1.170A-14(c). The mission of Grantee’s Natural Areas Department is to conserve and enhance lands with natural resource, agricultural, and scenic values, while providing meaningful education and appropriate recreation opportunities. H. Grantee is also a governmental entity as required under C.R.S. § 38-30.5-101, et seq., which provides for conservation easements to maintain land and water in a natural, scenic or open condition, for wildlife habitat, or for agricultural and other uses or conditions consistent with the protection of open land in Colorado. I. Grantee is certified as license number CE.000000031 by the State of Colorado’s Division of Real Estate pursuant to C.R.S. § 12-61-724 and 4 C.C.R. 725-4, Chapter 2, to hold conservation easements for which a tax credit is claimed. J. Grantee agrees by accepting this Deed to preserve and protect in perpetuity the Conservation Values for the benefit of this and future generations. NOW, THEREFORE, pursuant to the laws of the State of Colorado, and in particular C.R.S. § 38-30.5-101, et seq., and in consideration of the recitals set forth above, and the mutual covenants, terms, conditions, and restrictions contained in this Deed, and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, Grantor voluntarily grants and conveys to Grantee, and Grantee voluntarily accepts, a conservation easement in gross in perpetuity over the 5 Property for the Purpose set forth below and of the nature and character and to the extent set forth in this Deed. This Deed entirely amends, restates and replaces the 2005 Conservation Easement. 1. Purpose. The purpose of this Deed is to ensure that Grantor preserves and protects in perpetuity the Conservation Values as they exist upon the Effective Date and as they may evolve in the future, in accordance with I.R.C. § 170(h), Treas. Reg. § 1.170A-14 and C.R.S. § 38-30.5-101 et seq. (“Purpose”). To effectuate the Purpose, Grantor and Grantee agree: (i) to allow those uses of the Property that are expressly permitted by this Deed, subject to any limitations or restrictions stated in this Deed, and those uses of the Property that do not materially adversely affect the Conservation Values; and (ii) to prevent any use of the Property that is expressly prohibited by this Deed or will materially adversely affect the Conservation Values. Notwithstanding the foregoing, nothing in this Deed is intended to compel a specific use of the Property, such as agriculture, other than the preservation and protection of the Conservation Values. 2. Baseline Documentation Report. The Parties acknowledge that a written report dated September 30, 2005 was prepared by LREP, Inc., reviewed and approved, which documents the Property’s original condition (the “Baseline Report”). Either or both parties may update the Baseline Report at any time. Both parties agree to provide a copy of the new report to the other. The Baseline Report contains a natural resources inventory of the Property and also documents existing improvements on and current uses of the Property. A copy of the Baseline Report shall be kept on file with each Party and is by this reference made a part of this Deed. The Parties acknowledge that the Baseline Report is intended to establish and accurately represent the condition of the Property as of the Effective Date, and the Parties have acknowledged the same in a signed statement, a copy of which is attached as Exhibit C. The Parties will use the Baseline Report to assure that any future changes to the Property are consistent with the Purpose. However, the Parties agree that the existence of the Baseline Report shall in no way limit the Parties’ ability to use other pertinent information in resolving any controversy that may arise with respect to the condition of the Property as of the Effective Date. 3. Rights of Grantee. To accomplish the Purpose, in addition to the rights of the Grantee described in C.R.S. § 38-30.5-101 et seq., and the rights of Grantee described elsewhere in this Deed, the Deed conveys the following rights to Grantee: a. Right to Protect the Conservation Values. To preserve and protect the Conservation Values in perpetuity by administering, managing and enforcing the terms of this Deed; b. Right to Access the Property. To enter upon the Property at reasonable times to monitor Grantor’s compliance with and, if necessary, to enforce the terms of this Deed. Such entry shall be made upon prior reasonable notice to Grantor, except in the event Grantee reasonably determines that immediate entry upon the Property is necessary to prevent or mitigate a violation of this Deed. In the case where Grantee has determined that immediate entry is necessary, a reasonable attempt will be made to notify Grantor 6 prior to such entry. Grantee shall not unreasonably interfere with Grantor’s use and quiet enjoyment of the Property when exercising any such rights; c. Right to Prevent Inconsistent Activities and Require Restoration of Disturbed Areas. To prevent any activity on or use of the Property that is inconsistent with the Purpose or the express terms of this Deed and to require the restoration of such areas or features of the Property that may be damaged by any inconsistent use; and d. Right of Review. To require Grantor to consult with Grantee regarding the negotiations of any and all agreements between Grantor and third parties that may impact or disturb any portion of the surface of the Property, including but not limited to easement agreements, utility easements, right of way agreements, surface use agreements, and lease agreements (other than those specifically related to the agricultural and recreational operations of the Property), and to have the right to approve any such agreement prior to such agreement being executed. Within 60 days of consulting with Grantor in writing, Grantee shall provide Grantor with a decision or explain to Grantor why Grantee reasonably requires no more than an additional 30 days to reach a decision. Grantee’s approval shall not be unreasonably withheld, but nothing in this Deed is intended to require Grantee to approve any action or agreement that is inconsistent with the terms of this Deed. 4. Reserved Rights. Subject to the terms of the Deed, Grantor reserves to Grantor, and to Grantor’s personal representatives, heirs, successors, and assigns, all rights accruing from Grantor’s ownership of the Property, including (i) the right to engage in or permit or invite others to engage in all uses of the Property that are expressly permitted by this Deed, subject to any limitations or restrictions stated in this Deed, and those uses of the Property that do not materially adversely affect the Conservation Values; and (ii) to retain the economic viability of the Property and retain income derived from the Property from all sources, unless otherwise provided in this Deed, that are consistent with the terms of this Deed. Grantor may not, however, exercise these retained rights in a manner that is expressly prohibited by this Deed or that materially adversely affects the Conservation Values. Without limiting the generality of the foregoing, Grantor reserves the following specific rights: a. Right to Convey. Grantor may sell, give, lease, bequeath, devise, mortgage, or otherwise encumber or convey the Property, subject to the following: (i) any lease, deed, or other conveyance or encumbrance is subject to this Deed, and any such document shall specifically incorporate the terms and conditions of this Deed by reference to this Deed; (ii) any lease or deed or other conveyance document shall specifically state which reserved rights have been exercised, if at all, and which reserved rights are specifically allocated to the new owner or lessee; and (iii) notice of any proposed conveyance or encumbrance as set forth in this Section 4.a shall be subject to the provisions of Section 19 of this Deed. b. Subdivision. Grantor may subdivide the property into two tracts – an approximately 5-acre tract around the existing building envelope shown on Exhibit B (the “Building Envelope”), hereinafter referred to as Parcel A (and more particularly 7 described on Exhibit D) and a tract encompassing the remaining 40+/-acres, hereinafter referred to as Parcel B (and more particularly described on Exhibit E). Parcel A and Parcel B are hereafter referred to collectively as “Parcels” or the “Property”. Both Parcels shall be subject to this Deed. If the Property is so divided, the owner(s) of either or both Parcels shall be “Grantor” unless otherwise specified herein, shall be Parties to this Deed, and may also be referred to herein individually as “Owner” or collectively as “Owners.” Should Grantor sell Parcel B, Grantor may retain an access easement across Parcel B for access to Parcel A. Any further division or subdivision of title to the Property, whether by legal or physical process, into two or more parcels of land or partial or separate interests (including but not limited to condominium interests or the partition of undivided interests) is prohibited, other than conveyances to public entities for public roads or other public improvements consistent with this Deed. Nothing in this subparagraph shall be construed to prohibit joint ownership of each parcel or ownership of the Property by an entity consisting of more than one member. c. Resource Management. To accomplish the preservation and protection of the Conservation Values in perpetuity, Grantor shall operate, manage and maintain the Property in a manner that promotes the continued viability of the natural resources on the Property while maintaining any permissible productive uses of the Property, subject to the provisions of Section 6 of this Deed. Specifically, Grantor agrees to conduct the activities listed below in a manner consistent with the Purpose. Notwithstanding the foregoing, Grantor and Grantee recognize that changes in economic conditions, in agricultural technologies, in accepted farm, ranch and forest management practices, and in the situation of Grantor may result in an evolution of agricultural, silvicultural, and other uses of the Property, and such uses are permitted if they are consistent with the Purpose. (1) Habitat Management. Grantor may conduct any activities to create, maintain, restore, or enhance wildlife habitat and native biological communities on the Property, provided that such activities do not have more than a limited, short-term adverse effect on the Conservation Values. (i) Weed/Pest Management. Management of land to control erosion, growth of weeds and brush, rodents, pests, insects and pathogens, fire danger and other threats is permitted consistent with applicable laws and regulations and in keeping with maintenance of the Conservation Values of the Property, and in accordance with the Land Management Plan described in Section 6 below. The Grantor agrees to manage noxious weeds in accordance with the requirements of Larimer County, the State of Colorado and other applicable agencies. (ii) Maintenance/Restoration. Maintenance, stabilization, replacement, or restoration of existing croplands, springs, ditches and pastureland, are permitted. Wetland 8 pond restoration and creation are permitted if and to the extent consistent with the Purpose and the terms of this Deed. (iii) Prescribed Fire. Igniting outdoor prescribed fires for agricultural or ecological purposes shall be allowed on the Property, provided that such activity is conducted in accordance with accepted prescribed burn practices, all applicable laws or regulations, and the Land Management Plan described in Section 6 below. (2) Agriculture. Grantor reserves the right to use the Property for grazing livestock. Grantor shall conduct all agricultural activities using stewardship and management methods that preserve the natural resources upon which agriculture is based. Long-term stewardship and management goals include preserving soil productivity, maintaining natural stream channels, preventing soil erosion, minimizing invasive species, avoiding unsustainable livestock grazing practices, and minimizing loss of vegetative cover. (i) Grazing. Livestock grazing is permitted in accordance with sound stewardship and management practices, and shall be managed so that the overall condition of the Property is preserved at its baseline condition and in no event in less than “fair” condition (as defined by an applicable U.S. Department of Agriculture - Natural Resources Conservation Service (NRCS) Technical Guide). For the purposes of this Deed “livestock” shall mean cattle, horses, sheep, goats, llamas, alpaca, and bison. The raising of other livestock and/or game animals shall not be permitted unless specifically approved by the Grantee and described in the Land Management Plan. The Grantor shall comply with and have responsibility for compliance of the Property with the Colorado Noxious Weed Act and any other governmental noxious weed control regulations. (ii) Other Agricultural Uses. Gardening, beekeeping, and an orchard, all solely for consumption by the onsite residents, is allowed within in an area less than one acre in size. (3) Timber Management. Trees may be cut to control insects and disease, to control invasive non-native species, to prevent personal injury and property damage, to promote forest health, and for fire mitigation purposes including limited and localized tree and vegetation thinning and the creation of defensible space for permitted improvements. Collecting of firewood from dead or downed trees, or the use of trees cut as part of forest health management for firewood is permitted. In addition, trimming 9 brush and trees to create a vehicular throughway to accomplish land management is permitted. Any large-scale fire mitigation activities or commercial timber harvesting on the Property shall be conducted on a sustainable yield basis and in substantial accordance with a forest management plan prepared by a competent professional forester. Any large- scale fire mitigation activities or timber harvesting shall be conducted in a manner that is consistent with the Purpose. A copy of the forest management plan shall be approved by Grantee prior to any large-scale fire mitigation activities or commercial timber harvesting. d. Recreational Activities. Grantor reserves the right to engage in non- commercial, non-motorized passive recreational activities, such as horseback riding, hiking, cross-country skiing, snowshoeing, and other similar low-impact recreational uses, to be enjoyed solely by each Owner and such Owner’s family and guests on such Owner’s parcel. Construction of recreational trails and trailhead for public use on Parcel B is permitted in accordance with 4.f(3) of this Deed. e. Hunting. No hunting, shooting, or trapping of any animals shall be permitted on the Property with the following exceptions: (1) live-trapping of prairie dogs for relocation pursuant to Section 4.l. herein; (2) trapping of small mammals for rodent control within the Building Envelope; (3) live-trapping for research purposes; and No public, commercial or recreational use of the Property for hunting, shooting or trapping of any animals, is allowed. f. Improvements on Parcel A. (1) Residential and Non-Residential Improvements. Parcel A currently contains one residential structure consisting of approximately two thousand one hundred and twenty-three (2,123) square feet. Grantor may maintain, repair, replace, or reasonably enlarge this residential structure to a size that does not exceed three thousand (3,000) square feet in total (excluding unfinished basement areas but including any living space above an attached or detached garage). Any other improvements existing on Parcel A as of the Effective Date are also permitted, and Grantor may maintain, repair, replace and reasonably enlarge such improvements in their current locations without Grantee’s approval. Typical residential landscaping, which may be non-native but shall not be invasive species, is permitted within 100 feet of actual buildings within the Building Envelope and native trees, shrubs, grasses, and wildflowers may be planted outside the 100 foot limit area within the Building Envelope. Grantor reserves the right to construct or place Residential Improvements and Non-Residential Improvements, defined below, and Grantor shall provide prior notice of such construction to Grantee in accordance with Section 7 of this Deed. Once constructed, Grantor may maintain, repair, replace and reasonably enlarge such new improvements in their initially constructed locations without Grantee’s 10 approval. Any new Non-Residential Improvement requiring a building permit or exceeding 800 square feet in total floor area and not expressly provided for in the Land Management Plan described in Section 6 below shall require prior written approval by the Grantee, in its reasonable discretion. “Residential Improvements” shall mean covered improvements containing habitable space intended for full- or part-time human habitation, including but not limited to homes, cabins, guest houses, mobile homes, yurts, tepees, and any space attached to any such improvement such as a garage or covered porch. “Non- Residential Improvements” shall mean all other covered or uncovered agricultural and non-residential improvements that are not intended for human habitation, including but not limited to barns, hay storage areas, machine shops, sheds, free-standing garages, well houses, outhouses, gazebos, picnic areas, sport courts, pools, outdoor kitchens, parking areas, and indoor and outdoor riding arenas, fences (subject to the terms of Section 4.f of this Deed), corrals, hayracks, cisterns, stock tanks, stock ponds, troughs, fenced hay stacks, livestock feeding stations, hunting blinds, wildlife viewing platforms, sprinklers, water lines, water wells, ditches, information kiosks, trail markers and trash receptacles. The property currently contains one outbuilding consisting of approximately one thousand two hundred (1,200) square feet and another building consisting of approximately three hundred (300) square feet. (2) Building Envelope. The 2005 Easement designated the Building Envelope consisting of 5 acres in the location now depicted on Exhibit F. The Owner of Parcel A may construct, place, replace or enlarge Residential and Non-Residential Improvements within the Building Envelope subject to the following limitations: (i) One single family residence (ii) Maximum square footage for single family residence shall be 3,000 square feet of living space. (iii) Maximum square footage for any non-residential building shall not exceed 2,000 square feet in gross floor area. (iv) Maximum square footage for all outbuildings shall not exceed 4,000 square feet. g. Improvements on Parcel B. (1) Residential and Non-Residential Improvements. No residential structures exist on Parcel B and no new residential structures are permitted. Non-Residential Improvements, defined below, existing as of the Effective Date are permitted, and the Owner of Parcel B may maintain, repair, replace and reasonably enlarge such improvements in their current locations without Grantee’s approval. Owner of Parcel B reserves the right to construct or place additional Non-Residential Improvements, and shall provide prior notice of such construction to Grantee in accordance with Section 7 of this Deed. Any new Non-Residential Improvement requiring a building permit or exceeding 800 square feet in total floor area and not expressly provided for in the Land Management Plan described in Section 6 below shall require prior written approval by the Grantee, in its reasonable discretion. Once constructed, the Owner may maintain, repair, replace and 11 reasonably enlarge such new improvements in their initially constructed locations without Grantee’s approval. (2) Building Envelope. Owner of Parcel B may designate a building envelope (“Building Envelope”) of no more than four (4) acres. New Non-Residential Improvements may be built within the Building Envelope subject to the following limitations: (i) Improvements will be grouped together to the extent practicable (Ex: Vault restrooms, storage building, kiosk and parking lot in one general location.) (ii) Maximum square footage of a structure or building shall not exceed 1,000 square feet. (iii) Maximum height of any structure shall be 15 feet. (3) “Non-Residential Improvements” shall mean all covered or uncovered recreational, agricultural and other improvements that are not intended for human habitation, including but not limited to well houses, outhouses, gazebos, picnic areas, trailhead parking areas (including vault toilets, trash receptacles, shelters, and kiosks), loafing sheds, corrals, hayracks, cisterns, stock tanks, stock ponds, troughs, fenced hay stacks, livestock feeding stations, hunting blinds, and wildlife viewing platforms. Notwithstanding the foregoing, trail markers, interpretive signs, information kiosks, site signs, fences (subject to the terms of Section 4.f of this Deed), sprinklers, water lines, water wells and ditches may be constructed outside of the Building Envelope. (4) Setbacks/Requirements for Improvements. In no case shall any structure be built on Parcel B within one hundred (100) feet of any stream, spring, or improvement, as identified in the Baseline Documentation or as may subsequently develop or be determined to exist on the Property, with the exception of water facilities described in paragraph 4.j below. Except for structures permitted within the Building Envelope, as shown on Exhibit B, no structure shall exceed twenty-five (25) feet in height, as measured from the average elevation of the finished grade to the highest point on a structure, unless approved by the Grantee. All development and construction must comply with local, state, and federal requirements. h. Roads and Trails. Maintenance of existing Roads and Trails is permitted. “Roads” shall mean any road that is graded, improved or maintained, including seasonal unimproved roads and two-track roads. “Trails” shall mean any unimproved or improved path, or paved or unpaved trail constructed or established by human use, but shall not include game trails established and used by wildlife only. Prior to the construction or establishment of any Road or Trail, Grantor shall provide notice to Grantee in accordance with Section 7 of this Deed. (1) Grantor shall not construct or establish Roads except those existing Roads depicted on Exhibit B, an access road in an easement across Parcel B as permitted in paragraph 4.b. above, or such other Roads as Grantee determines are consistent with the Purpose. Grantor shall not construct or establish any Road wider than necessary to provide 12 access for all permitted uses or to meet local codes for width of access to improvements permitted by this Deed. Grantor shall not pave or otherwise surface a Road with any impervious surface, except if Grantee determines the paving of the Road is consistent with the Purpose. (2) No Owner shall construct or establish any new Trail on the Property unless Grantee determines a new Trail is consistent with the Purpose. An Owner may construct approved Trails, and trail head access roads and parking for appropriate, public trail recreation including hiking, wildlife watching, horseback riding, and mountain biking. However, trailhead parking may not be constructed on Parcel B before 2024.Trail recreation shall be non-motorized except as required for compliance with the Americans with Disabilities Act or other applicable laws. i. Fences. Existing fences may be maintained, repaired and replaced, and new fences may be built anywhere on the Property. The location and design of any fencing shall facilitate and be compatible with the movement of wildlife across the Property and otherwise consistent with the Purpose. j. Water Facilities. Maintenance, development and construction of water facilities such as water wells, livestock watering wells, windmills, springs, water storage tanks, hydrants, pumps and/or well houses and similar minor agricultural infrastructure that are solely for use on the Property in conjunction with those activities on the Property permitted by this Deed, including providing drinking water for users and livestock on the Property, for use by the Grantor, Grantor’s lessees and/or invitees, are permitted. Any facilities pursuant to this paragraph shall be sited and constructed or placed so as not to substantially diminish or impair the Conservation Values of the Property and may be considered exempt from the setback requirement described in Section 4.g.(4). above. k. Utility Improvements. Any energy generation or transmission infrastructure and other utility improvements on the Property that already exist on the Property pursuant to an easement or other instrument recorded on or prior to the Effective Date, or later approved by Grantor after notice to Grantee in accordance with Section 7 of this Deed, may be repaired or replaced with an improvement of similar size and type at their current locations on the Property without further permission from Grantee. Utility improvements include but are not limited to: (i) natural gas distribution pipelines, electric power poles, transformers, and lines; (ii) telephone and communications towers, poles, and lines; (iii) water wells, domestic water storage and delivery systems; and (v) renewable energy generation systems including but not limited to wind, solar, geothermal, or hydroelectric for use on the Property (“Utility Improvements”). Any new or expanded Utility Improvements must be consistent with the Purpose, and Grantor shall not enlarge or construct any additional Utility Improvements without Grantee’s approval. However, Grantor reserves the right to construct Utility Improvements solely to provide utility services to the improvements permitted by this Deed, provided that no Utility Improvement exceeds 35 feet in height. Utility Improvements shall be located underground to the extent practicable. 13 (1) Additional Requirements. Prior to the enlargement or construction of any Utility Improvements on the Property, Grantor shall provide notice to Grantee in accordance with Section 7 of this Deed. Following the repair, replacement, enlargement or construction of any Utility Improvements, Grantor shall promptly restore any disturbed area to a condition consistent with the Purpose. (2) Alternative Energy. (i) Wind, solar, and hydroelectric generation facilities that are primarily for the generation of energy for use on the Property in conjunction with those activities permitted by this Deed (collectively “Alternative Energy Generation Facilities”) may be constructed in accordance with this Section 4.k(2). Notwithstanding the foregoing, no approval of Grantee shall be required if the Alternative Energy Generation Facilities permitted by this Section 4.k(2) are located within a Building Envelope or if the facilities are installed in conjunction with the operation of an agricultural improvement as described in Section 4.f(1) above. Any other Alternative Energy Generation Facilities may only be constructed with the prior written approval of Grantee in Grantee’s sole discretion. Without limiting Grantee’s right to withhold such approval in its sole discretion, factors that Grantee may consider in determining whether to grant such approval shall include but not be limited to (a) whether the installation and siting would substantially diminish or impair the Conservation Values, (b) the physical impact of the proposed facility on the Conservation Values, (c) the feasibility of less impactful alternatives, and (d) such other factors as Grantee may determine are relevant to the decision. The construction of Alternative Energy Generation Facilities that are not for use primarily in conjunction with those activities permitted by this Deed are prohibited anywhere on the Property. Nothing in this Section 4.k(2) shall be construed as permitting the construction or establishment of a wind farm or commercial solar energy production facility. (ii) Any energy generated by Alternative Energy Generation Facilities constructed in accordance with this Section 4.k(2) that is incidentally in excess of Grantor’s consumption may be sold, conveyed, or credited to a provider of retail electric service to the extent permitted by Colorado law. (iii) In the event of technological changes or legal changes that make “expanded” Alternative Energy Generation Facilities more compatible with I.R.C. Section 170(h) or any applicable successor law, Grantee in its sole discretion may approve expanded Alternative Energy Generation Facilities that would not substantially diminish or impair the Conservation Values. For the purposes of this Section 4.k(2)(iii), the term “expanded” shall mean the development of Alternative Energy Generation Facilities to an extent that is greater than the level permitted by Sections 4.k(2)(i) and 4.k(2)(ii). l. Animal Control. Requirements for the control and eradication through live trapping or fumigation of prairie dogs and other animals on the Property shall be in accordance with the requirements for said activities set forth in the City Code of the City of 14 Fort Collins, Colorado (“City”), as the same would apply within the City whether or not the Property is within the City limits, except to the extent compliance with the same would necessarily result in violation of an applicable requirement of Larimer County. Grantor shall be allowed to control prairie dogs but shall comply with the requirements for the use of pesticides or otherwise related to the management of prairie dogs set forth in the City Code of the City of Fort Collins, without regard to whether the Property is within the boundaries of the City of Fort Collins. Grantor shall consult with Grantee in advance of taking any action to control, eradicate, or relocate prairie dogs, and any such action shall be consistent with Grantee's requirements associated with the protection of the Conservation Values of the Property or the purposes of this Easement. In any event, when using pesticides to control animal species on the Property, Grantor shall use only EPA-approved pesticides in approved amounts properly applied to appropriate habitats. Grantee encourages establishment and retention of prairie dogs on the Property. Prairie dog visual barriers may be installed to confine the prairie dog colony to a portion of the Property. Planting of native trees, shrubs, and other native plants to enhance wildlife habitat in appropriate locations on the Property are encouraged, but will be permitted only with the consent of the Grantee 5. Prohibited and Restricted Uses. Any activity on or use of the Property inconsistent with the Purpose is prohibited. Without limiting the generality of the foregoing, the following activities and uses are expressly prohibited or restricted as set forth below: a. Development Rights. To fulfill the Purpose, Grantor conveys to Grantee all development rights, except those expressly reserved by Grantor in this Deed, deriving from, based upon or attributable to the Property in any way, including but not limited to all present and future rights to divide the Property for the purpose of development into residential, commercial or industrial lots or units or to receive density or development credits for the same for use off of the Property (“Grantee’s Development Rights”). The Parties agree that Grantee’s Development Rights shall be held by Grantee in perpetuity in order to fulfill the Purpose, and to ensure that such rights are forever released, terminated and extinguished as to Grantor, and may not be used on or transferred off of the Property to any other property or used for the purpose of calculating density credits or permissible lot yield of the Property or any other property. b. Residential, Non-Residential and Minor Non-Residential Improvements. Grantor shall not construct or place any Residential Improvements, Non-Residential Improvements or Minor Non-Residential Improvements on the Property except in accordance with Section 4.f or 4.g of this Deed. c. Recreational and Commercial Improvements. Grantor shall not construct or place any new recreational improvement on the Property, including but not limited to athletic fields, golf courses or ranges, race tracks, airstrips, helicopter pads, or shooting ranges. Grantor shall not construct or place any new commercial improvement on the Property. d. Removal of Vegetation and Timber Harvesting. Except as otherwise set forth in this Deed, Grantor shall not remove any vegetation, including shrubs and trees, or harvest any timber from the Property except in accordance with Section 4.b(3). 15 e. Mineral Extraction. As of the Effective Date, Grantor owns all of the coal, oil, gas, hydrocarbons, sand, soil, gravel, rock and other minerals of any kind or description (the “Minerals”) located on, under, or in the Property or otherwise associated with the Property. This Deed expressly prohibits the mining or extraction of Minerals using any surface mining method. Notwithstanding the foregoing, Grantor and Grantee may permit mineral extraction utilizing methods other than surface mining if the method of extraction has a limited, localized impact on the Property that is not irremediably destructive of the Conservation Values. However, Grantor and Grantee agree that the following provisions shall apply to any such proposed mineral extraction by Grantor or any third party, as applicable: (1) Soil, Sand, Gravel and Rock. Grantor may extract soil, sand, gravel or rock without further permission from Grantee so long as such extraction: (i) is solely for use on the Property for non-commercial purposes; (ii) is in conjunction with activities permitted in this Deed, such as graveling roads and creating stock ponds; (iii) is accomplished in a manner consistent with the preservation and protection of the Conservation Values; (iv) does not result in more than one half-acre of the Property being disturbed by extraction at one time, and uses methods of mining that may have a limited and localized impact on the Property but are not irremediably destructive of the Conservation Values; and (v) is reclaimed within a reasonable time by refilling or some other reasonable reclamation method for all areas disturbed. This provision shall be interpreted in a manner consistent with I.R.C. § 170(h), as amended, and the Treasury Regulations adopted pursuant thereto. 11 (2) Oil and Gas. Grantor, or a third party permitted by Grantor, may explore for and extract oil and gas owned in full or in part by Grantor, provided Grantor ensures that such activities are conducted in a manner that does not constitute surface mining and complies with the following conditions: (i) The exploration for or extraction of oil, gas and other hydrocarbons is conducted in accordance with a plan (the “Oil and Gas Plan”), prepared at Grantor’s expense and approved in advance by Grantee. The Oil and Gas Plan shall describe: (a) the specific activities proposed; (b) the specific land area to be used for well pad(s), parking, staging, drilling, and any other activities necessary for the extraction of oil and gas, and the extent of the disturbance of such land area before and after reclamation; (c) the location of facilities, equipment, roadways, pipelines and any other infrastructure to be located on the Property; (d) the method of transport of oil or gas produced from the Property; (e) the method of disposal of water, mining byproducts and hazardous chemicals produced by or used in the exploration and development of the oil or gas; (f) the proposed operation restrictions to minimize impacts on the Conservation Values, including noise and dust mitigation and any timing restrictions necessary to minimize impacts to wildlife; (g) the reclamation measures necessary to minimize disturbance to and reclaim the surface of the Property, including restoring soils to the 11 This paragraph is only appropriate where Grantor has reserved limited development and/or road construction rights. It should be deleted if there is no reserved development on the Property. 16 original contours and replanting and re-establishing native vegetation using specific seed mixes and processes to ensure successful re-vegetation of the Property, including and in addition to those measures required by law; and (h) remedies for damages to the Conservation Values. (ii) No tank batteries, refineries, secondary production facilities, compressors, gas processing plants, or other similar facilities may be located on the Property. (iii) Areas of surface disturbance shall be mitigated promptly in accordance with the Oil and Gas Plan. (iv) Travel for the purpose of oil or gas development shall be restricted to existing roads or to new roads approved in advance in writing by Grantee as part of the Oil and Gas Plan. (v) Well facilities and pipelines shall either be placed underground, or screened, or concealed from view using existing topography, existing native vegetation, newly planted but native vegetation, and/or use of natural tone coloring. Pipelines shall be located along or under existing roadways to the maximum extent possible. (vi) Drilling equipment may be located above ground without concealment or screening, provided that such equipment shall be promptly removed after drilling is completed. (vii) Any soil or water contamination due to the exploration for or extraction of oil or gas must be promptly remediated at the expense of Grantor. (viii) Any water, mining byproducts or hazardous chemicals produced by or used in the exploration and development of the oil or gas shall not be stored or disposed of on the Property. (ix) Flaring to enhance oil production is prohibited; flaring for emergencies or operational necessity is permitted. (x) Grantee shall be released and, to the extent permitted by law, indemnified and held harmless from any liabilities, damages, or expenses resulting from any claims, demands, costs or judgments arising out of the exercise of any rights by Grantor, any lessees or other third parties relating to the exploration for or extraction of oil, gas or hydrocarbons. (3) Third-Party Mineral Extraction. If a third party owns all, or controls some, of the Minerals, and proposes to extract Minerals from the Property, Grantor shall immediately notify Grantee in writing of any proposal or contact from a third party to explore for or develop the Minerals on the Property. Grantor shall not enter into any lease, surface use agreement, no-surface occupancy agreement, or any other 17 instrument related to Minerals associated with the Property (each, a “Mineral Document”), with a third party subsequent to the Effective Date without providing a copy of the same to Grantee prior to its execution by Grantor for Grantee’s review and approval. 12 Any Mineral Document shall require that Grantor provide notice to Grantee whenever notice is given to Grantor, require the consent of Grantee for any activity not specifically authorized by the instrument, and give Grantee the right, but not the obligation, to object, appeal and intervene in any action in which Grantor has such rights. Any Mineral Document must either (i) prohibit any access to the surface of the Property or (ii) must (a) limit the area(s) of disturbance to a specified area(s); (b) include provisions that ensure that the proposed activities have a limited, localized impact on the Property that is not irremediably destructive of the Conservation Values; and (c) contain a full description of the activities proposed, a description of the extent of disturbance, the location of facilities, equipment, roadways, pipelines and any other infrastructure, the proposed operation restrictions to minimize impacts on the Conservation Values, reclamation measures including and in addition to those required by law, and remedies for damages to the Conservation Values. Any Mineral Document that only permits subsurface access to Minerals but prohibits any access to the surface of the Property shall also prohibit any disturbance to the subjacent and lateral support of the Property, and shall not allow any use that would materially adversely affect the Conservation Values. (4) This Section 5.e shall be interpreted in a manner consistent with I.R.C. § 170(h) and the Treasury Regulations adopted pursuant thereto. f. Trash. The dumping or accumulation of any kind of trash or refuse on the Property, including but not limited to household trash and hazardous chemicals, is prohibited. Limited dumping or accumulation of other agriculture-related trash and refuse produced on the Property is permitted, provided that such dumping does not substantially diminish or impair the Conservation Values and is confined within a total area less than one-quarter acre at any given time. This Section 5.f shall not be interpreted to prevent the storage of agricultural products and by-products on the Property in accordance with all applicable government laws and regulations. g. Motorized Vehicles. Motorized vehicles may be used only in conjunction with activities permitted by this Deed and in a manner that is consistent with the Purpose. Off-road vehicle courses for snowmobiles, all-terrain vehicles, motorcycles, or other motorized vehicles are prohibited. h. Commercial or Industrial Activity. (1) No industrial uses shall be allowed on the Property. Commercial uses are allowed, as long as they are conducted in a manner that is consistent with I.R.C. § 170(h) and the Purpose. Without limiting other potential commercial uses that meet the foregoing criteria, the following uses are allowed: 12 If there is an active oil and gas lease on the Property, you will need to consult with Grantee about drafting certain additional protections. 18 (i) Breeding and grazing livestock, such as cattle, horses, sheep, and similar animals; (2) The foregoing descriptions of allowed commercial uses notwithstanding, commercial feed lots and other intensive growth livestock farms, such as dairy, swine, or poultry farms, are inconsistent with the Purpose and are prohibited. For purposes of this Deed, "commercial feed lot" is defined as a permanently constructed confined area or facility within which the Property is not grazed or cropped annually, and which is used and maintained for purposes of engaging in the commercial business of the reception and feeding of livestock. i. Signage or Billboards. No commercial signs, billboards, awnings, or advertisements shall be displayed or placed on the Property, except for appropriate and customary ranch or pasture identification signs, “for sale” or “for lease” signs alerting the public to the availability of the Property for purchase or lease, “no trespassing” signs, signs regarding the private leasing of the Property for hunting, fishing or other low- impact recreational uses, and signs informing the public of the status of ownership. Any such signs shall be located and designed in a manner consistent with the Purpose. 6. Land Management / Management Plan. Grantor and Grantee acknowledge that the preservation and protection of the Conservation Values as contemplated under this Deed require careful and thoughtful stewardship of the Property. To facilitate periodic communication between Grantor and Grantee about management issues that may impact the Conservation Values, the Property shall be operated and managed in accordance with a “Management Plan” jointly prepared and agreed upon by Grantor and Grantee on or before the Effective Date. If the Property is subdivided into two Parcels, each Parcel shall have its own Management Plan prepared and agreed to by the Grantee and the Owner of such Parcel. The Parties shall review the Management Plan at least every five years and update it if either Party determines an update is necessary. 7. Grantor Notice and Grantee Approval. The purpose of requiring Grantor to notify Grantee prior to undertaking certain permitted activities is to afford Grantee an opportunity to ensure that the activities in question are designed and carried out in a manner consistent with the Purpose. Whenever notice is required, Grantor shall notify Grantee in writing within a reasonable period of time prior to the date Grantor intends to undertake the activity in question. The notice shall describe the nature, scope, design, location, timetable, and any other material aspect of the proposed activity in sufficient detail to permit Grantee to make an informed judgment as to its consistency with the Purpose. Where Grantee's approval is required, Grantor shall not undertake the requested activity until Grantor has received Grantee’s approval in writing. Grantee shall grant or withhold its approval in writing within the time frame described in Paragraph 3d above, following receipt of Grantor’s written request and sufficient supporting details as described above. Grantee's approval may be withheld only upon Grantee’s reasonable determination that the activity as proposed is not consistent with the Purpose or the express terms of this Deed, unless this Deed provides that approval for a particular request may be withheld in the sole discretion of the Grantee. 19 8. Enforcement. The Grantee shall have the right to prevent and correct or require correction of violations of the terms of this Deed and the purposes of the Easement. The Owner of one (1) Parcel will not be held liable for violations located entirely on the other Parcel, so long as such violations were not caused by the non-occupying Owner. If Grantee finds what it believes is a violation of this Deed, Grantee shall immediately notify the Owner(s) in writing of the nature of the alleged violation. Upon receipt of this written notice, such Owner(s) shall either: a. Restore the Property to its condition prior to the violation; or b. Provide a written explanation to Grantee of the reason why the alleged violation should be permitted, in which event the Parties agree to meet as soon as possible to resolve their differences. If a resolution cannot be achieved at the meeting, the Parties may meet with a mutually acceptable mediator to attempt to resolve the dispute. Owner(s) shall discontinue any activity that could increase or expand the alleged violation during the mediation process. If the Owner refuses to undertake mediation in a timely manner or should mediation fail to resolve the dispute, Grantee may, at its discretion, take appropriate legal action. Notwithstanding the foregoing, when Grantee, in its sole discretion, determines there is an ongoing or imminent violation that could irreversibly diminish or impair the Conservation Values, Grantee may, at its sole discretion, take appropriate legal action without pursuing mediation, including but not limited to seeking an injunction to stop the alleged violation temporarily or permanently or to require the Owner(s) to restore the Property to its prior condition. 9. Costs of Enforcement. An Owner shall pay any costs incurred by Grantee in enforcing the terms of this Deed against such Owner, including without limitation costs and expenses of suit, attorney fees and any costs of restoration necessitated by such Owner’s violation of the terms of this Deed. If the deciding body determines that the Owner has prevailed in any such legal action, then each Party shall pay its own costs and attorney fees. However, if the deciding body determines that Grantee’s legal action was frivolous or groundless, Grantee shall pay the Owner’s costs and attorney fees in defending the legal action. 10. No Waiver or Estoppel. Enforcement of the terms of this Deed shall be in the Grantee’s discretion. If the Grantee does not exercise, or delays the exercise of, its rights under this Deed in the event of a violation of any term, such inaction or delay shall not be deemed or construed to be a waiver by Grantee of such term or of any subsequent violation of the same or any other term of this Deed or of any of Grantee's rights under this Deed. Grantor waives any defense of laches, estoppel, or prescription, including the one-year statute of limitations for commencing an action to enforce the terms of a building restriction or to compel the removal of any building or improvement because of the violation of the same under C.R.S. § 38-41-119, et seq. 11. Acts Beyond Grantor’s Control. Nothing contained in this Deed shall be construed to entitle Grantee to bring any action against Grantor for any injury to or change in the 20 Property resulting from causes beyond Grantor’s control, including without limitation fire, flood, storm, and earth movement, 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. Notwithstanding the foregoing, Grantor shall take reasonable efforts to prevent third parties from performing, and shall not knowingly allow third parties to perform, any act on or affecting the Property that is inconsistent with the Purpose. 12. Access. No right of access by the general public to any portion of Parcel A is conveyed by this Deed. 13. Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the Property, including weed control and eradication and maintaining adequate comprehensive general liability insurance coverage. Grantor shall keep the Property free of any liens arising out of any work performed for, materials furnished to, or obligations incurred by Grantor. 14. Taxes. Grantor shall pay before delinquency all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Property by competent authority (collectively “Taxes”), including any Taxes imposed upon, or incurred as a result of, this Deed, and shall furnish Grantee with satisfactory evidence of payment upon request. 15. Hold Harmless. To the extent permitted by law, Grantor shall hold harmless, indemnify, and defend Grantee and its members, directors, officers, employees, agents, and contractors and the heirs, representatives, successors, and assigns (the “Indemnified Party”) from and against all liabilities, penalties, costs, losses, damages, expenses, causes of action, claims, demands, or judgments, including without limitation reasonable attorneys' fees, arising from or in any way connected with: (1) 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 negligence of the Indemnified Party; (2) the obligations specified in Section 8; and (3) the presence or release of hazardous or toxic substances on, under or about the Property. For the purpose of this Section 15, hazardous or toxic substances shall mean any hazardous or toxic substance that is regulated under any federal, state or local law. Without limiting the foregoing, nothing in this Deed shall be construed as giving rise to any right or ability in Grantee, nor shall Grantee have any right or ability, to exercise physical or managerial control over the day-to-day operations of the Property, or otherwise to become an operator with respect to the Property within the meaning of The Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, or any similar law or regulation. 16. Real Property Interest. The conservation easement interest created by this Deed constitutes a real property interest immediately vested in Grantee. The Parties stipulate that for Parcel B this conservation easement interest (which includes the value of 21 Grantee’s Development Rights) has a fair market value equal to Forty-seven and a half percent (47.5%) of the full unencumbered fair market value of the Property (the “Easement Value Percentage”). Both Parties stipulate that for Parcel A this conservation easement interest has a fair market value equal to ten percent (10%) of the full unencumbered fair market value of the Property (the “Easement Value Percentage”). The values at the time of this Deed shall be those values used to calculate the deduction for federal income tax purposes allowable by reason of this grant, pursuant to I.R.C. § 170(h), whether or not Grantor claims any deduction for federal income tax purposes. The Easement Value Percentage shall remain constant. 17. Condemnation or Other Extinguishment. If this Deed is taken, in whole or in part, by exercise of the power of eminent domain (“Condemnation”), or if circumstances arise in the future that render the Purpose impossible or impractical to accomplish, this Deed can only be terminated, whether in whole or in part, by judicial proceedings in a court of competent jurisdiction. Each Party shall promptly notify the other Party in writing when it first learns of such circumstances. Grantee shall be entitled to full compensation for its interest in any portion of this Deed that is terminated as a result of Condemnation or other proceedings. Grantee’s proceeds shall be an amount at least equal to the Easement Value Percentage multiplied by the value of the unencumbered fee simple interest (excluding the value of any improvements) in the portion of the Property that will no longer be encumbered by this Deed as a result of Condemnation or termination. Grantor shall not voluntarily accept proceeds equal to less than the full fair market value of the affected Property unrestricted by this Deed without the approval of Grantee. Grantee shall use its proceeds in a manner consistent with the conservation purposes of this Deed. Grantee's remedies described in this Section 17 shall be cumulative and shall be in addition to any and all remedies now or hereafter existing at law or in equity, including the right to recover any damages for loss of Conservation Values as described in C.R.S. § 38-30.5-108. 18. Assignment. a. This Deed is transferable, but Grantee may assign its rights and obligations under this Deed only to an organization that: (1) is a qualified organization at the time of transfer under I.R.C. § Section 170(h) as amended (or any successor provision then applicable) and the applicable regulations promulgated thereunder; (2) is authorized to acquire and hold conservation easements under Colorado law; (3) agrees in writing to assume the responsibilities imposed on Grantee by this Deed; and b. If Grantee desires to transfer this Deed to a qualified organization having similar purposes as Grantee but Grantor has refused to approve the transfer, Grantee may 22 seek an order by a court with jurisdiction to transfer this Deed to another qualified organization having similar purposes that agrees to assume the responsibility imposed on Grantee by this Deed, provided that Grantor shall have adequate notice of and an opportunity to participate in the court proceeding leading to the court’s decision on the matter. c. Upon compliance with the applicable portions of this Section 18, the Parties shall record an instrument completing the assignment in the property records of the county or counties in which the Property is located. Assignment of the Deed shall not be construed as affecting the Deed’s perpetual duration and shall not affect the Deed’s priority against any intervening liens, mortgages, easements, or other encumbrances. 19. Subsequent Transfers. Grantor shall notify the Grantee in writing at least thirty (30) days in advance of the proposed conveyance of any interest in all or any portion of the Property, including any conveyance under threat of condemnation, and shall incorporate by reference the terms and conditions of this Deed in any deed or other legal instrument by which it divests itself of any interest in all or a portion of the Property, except conveyance of a leasehold interest that is no longer than one year in duration or an agricultural lease, that is otherwise consistent in all respects with the terms of this Deed. The failure of Grantor to perform any act required by this Section 19 shall not impair the validity of this Deed or limit its enforceability in any way. 20. Notices. Any notice, demand, request, consent, approval, or communication that either Party is required to give to the other in writing shall be either served personally or delivered by (a) certified mail, with return receipt requested; or (b) a commercial delivery service that provides proof of delivery, addressed as follows: To Grantor: Glen and Margaret Hazelhurst 2887 W. Trilby Road Fort Collins, CO 80526 To Grantee: City of Fort Collins Natural Areas Department c/o John Stokes, Natural Areas Director P.O. Box 580 Fort Collins, CO 80522 or to such other address as either Party from time to time shall designate by written notice to the other. 21. Grantor’s Title Warranty. Grantor warrants that Grantor has good and sufficient title to the Property and Grantor has access to the Property for the purposes granted or permitted to Grantee in this Deed, and Grantor promises to defend the same against all 23 claims whatsoever. Grantor’s warranty of title is further subject to the encumbrances set forth on Exhibit G, attached hereto and incorporated herein by this reference. 22. Subsequent Liens on the Property. No provisions of this Deed shall be construed as impairing the ability of Grantor to use this Property (or either Owner, if the Property is divided, to use its respective Parcel) as collateral for subsequent borrowing, provided that any deed of trust, mortgage or lien arising from such a borrowing shall not encumber less than all of the Property (or Parcel if applicable), and shall be subordinate to this Deed for all purposes so that any such instrument expressly shall be deemed to have been recorded after this Deed and so that any foreclosure of such deed of trust, mortgage or lien shall not affect any provision of this Deed, including without limitation its perpetual nature, the payment of proceeds as described in Section 17 above, and the limitation of Section 5.e. 23. Recording. Grantee shall record this Deed in a timely fashion in the official records of each county or counties in which the Property is situated, and may re-record it at any time as may be required to preserve its rights in this Deed. 24. Environmental Attributes. Unless otherwise provided in this Deed, Grantor reserves all Environmental Attributes associated with the Property. “Environmental Attributes” shall mean any and all tax or other credits, benefits, renewable energy certificates, emissions reductions, offsets, and allowances (including but not limited to water, riparian, greenhouse gas, beneficial use, and renewable energy), generated from or attributable to the conservation, preservation and management of the Property in accordance with this Deed. Nothing in this Section 24 shall modify the restrictions imposed by this Deed or otherwise be inconsistent with the Purpose. 25. Tax Benefits. Grantor acknowledges that Grantor is responsible for obtaining legal and accounting counsel to advise Grantor regarding the applicability of federal or state tax benefits that might arise from the bargain sale (sale at less than fair market value) or donation of the Deed. Grantee makes no representation or warranty that Grantor will receive tax benefits for the bargain sale or donation of the Deed. 26. Deed Correction. The Parties shall cooperate to correct mutually acknowledged errors in this Deed (and exhibits), including typographical, spelling, or clerical errors. The Parties shall make such corrections by written agreement. 27. Effective Date. The Effective Date of this Deed shall be the date and year first written above. 28. General Provisions. a. Controlling Law. The interpretation and performance of this Deed shall be governed by the laws of the State of Colorado. b. Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Deed shall be liberally construed in favor of the grant to effect the 24 Purpose and the policy and purpose of C.R.S. § 38-30.5-101, et seq. If any provision in this Deed is found to be ambiguous, an interpretation consistent with the Purpose that would render the provision valid shall be favored over any interpretation that would render it invalid. c. Severability. If any provision of this Deed, or the application thereof to any person or circumstance, is found to be invalid, it shall be deemed severed from this Deed, and the balance of this Deed shall otherwise remain in full force and effect. d. Entire Agreement. The Recitals above are a material part of this Deed and are incorporated into this Deed. This Deed sets forth the entire agreement of the Parties with respect to the grant of a conservation easement over the Property and supersedes all prior discussions, negotiations, understandings, or agreements relating to the grant, all of which are merged in this Deed. e. Joint Obligation. The obligations imposed upon Grantor and Grantee in this Deed shall be joint and several if more than one entity or individual holds either interest at any given time. If there is more than one owner of a Parcel at any time, the obligations imposed by this Deed upon the Owners shall be joint and several upon each of the Owners of such Parcel. However, the Owners of one Parcel are not liable for the obligations of the Owners of the other Parcel. f. Non-Merger. A merger of this Deed and the fee title to the Property cannot occur by operation of law. No merger shall be deemed to have occurred hereunder or under any documents executed in the future affecting this Easement, unless the parties expressly state that they intend a merger of estates or interests to occur. g. Successors. The covenants, terms, conditions, and restrictions of this Deed shall be binding upon, and inure to the benefit of, the Parties and their respective personal representatives, heirs, successors, and assigns and shall continue as a servitude running in perpetuity with the Property. h. Termination of Rights and Obligations. Provided a transfer is permitted by this Deed, a Party's rights and obligations under the Deed terminate upon transfer of the Party's interest in the Deed or Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer. i. Captions. The captions in this Deed have been inserted solely for convenience of reference and are not a part of this Deed and shall have no effect upon construction or interpretation. j. No Third-Party Beneficiaries. This Deed is entered into by and between Grantor and Grantee and is solely for the benefit of Grantor and Grantee and their respective successors and assigns for the purposes set forth in this Deed. The enforcement of the terms and conditions of this Deed and all rights of action relating to such enforcement, shall be strictly reserved to the parties. Nothing contained in this Deed shall give or allow any claim or right of action whatsoever by any other third person, or by the 25 Owner of one Parcel against the Owner of the other Parcel. It is the express intention of the Parties that any person or entity, other than the Parties, receiving services or benefits under this Deed shall be deemed an incidental beneficiary only, and that the Owner of one Parcel is not a beneficiary of the rights or responsibilities of the Owner of the other Parcel under this Deed. k. Amendment. If circumstances arise under which an amendment to or modification of this Deed or any of its exhibits would be appropriate, Grantor and Grantee may jointly amend this Deed so long as the amendment (i) is consistent with the Conservation Values and Purpose of this Deed (ii) does not affect the perpetual duration of the restrictions contained in this Deed, (iii) does not affect the qualifications of this Deed under any applicable laws, and (iv) complies with Grantee’s procedures and standards for amendments (as such procedures and standards may be amended from time to time). If the Property has been divided into two Parcels, the Owner of either Parcel and the Grantee are free to jointly amend this Deed with respect to such Parcel without the consent of the Owner of the other Parcel; however, any amendment or modification affecting the entire Property must be approved in writing by all parties. Alternatively, the Grantor and Grantee may amend this Deed to create separate Deeds of Conservation Easement for each Parcel so that each may be managed as a separate Conservation Easement. Any amendment must be in writing, signed by the Parties, and recorded in the records of the Clerk and Recorder of the county in which the Property is located. In order to preserve the Deed’s priority, the Grantee may obtain subordinations of any liens, mortgages, easements, or other encumbrances, and the Grantee may require a new title policy. For the purposes of this paragraph, the term “amendment” means any instrument that purports to alter in any way any provision of or exhibit to this Deed. Nothing in this Section 28.k shall be construed as requiring Grantee to agree to any particular proposed amendment. l. Change of Conditions or Circumstances. A change in the potential economic value of any use that is prohibited by or inconsistent with this Deed, or a change in any current or future uses of neighboring properties, shall not constitute a change in conditions or circumstances that make it impossible or impractical for continued use of the Property, or any portion thereof, for conservation purposes and shall not constitute grounds for terminating the Deed in whole or in part. In conveying this Deed, the Parties have considered the possibility that uses prohibited or restricted by the terms of this Deed may become more economically valuable than permitted uses, and that neighboring or nearby properties may in the future be put entirely to such prohibited or restricted uses. It is the intent of Grantor and Grantee that any such changes shall not be deemed to be circumstances justifying the termination or extinguishment of this Deed, in whole or in part. In addition, the inability of Grantor, or Grantor’s heirs, successors, or assigns, to conduct or implement any or all of the uses permitted under the terms of this Deed, or the unprofitability of doing so, shall not impair the validity of this Deed or be considered grounds for its termination or extinguishment, in whole or in part. m. Authority to Execute. Each Party represents to the other that such Party has full power and authority to execute, deliver, and perform this Deed, that the 26 individual executing this Deed on behalf of each Party is fully empowered and authorized to do so, and that this Deed constitutes a valid and legally binding obligation of each Party enforceable against each Party in accordance with its terms 25 . n. Obligations Subject to Annual Appropriation. Any obligations of the Grantee under this Deed for fiscal years after the year of this Deed are subject to annual appropriation by Grantee’s governing body, in its sole discretion, of funds sufficient and intended for such purposes. o. Good Faith Negotiation/Mediation. Where this Deed requires the consent of either party, such consent shall not be unreasonably withheld, conditioned, delayed or denied. Where this Deed specifies that a decision requires the mutual agreement of the parties, the parties shall be obligated to make best efforts to negotiate in good faith to reach mutual agreement consistent with the Conservation Values and purposes of the Easement. In the event that such efforts by the parties fail to result in mutual agreement through negotiation, the parties agree to attempt to resolve their dispute through mediation. Either party may commence the mediation process by providing the other party with written notice setting forth the subject of the dispute, and the solution requested. Within ten (10) days after the receipt of the notice, the other party shall deliver a written response to the initiating party’s notice. The parties agree to meet with a mutually acceptable mediator to attempt to resolve the dispute. The initial mediation session shall be held within thirty (30) days after the initial notice, unless the selected mediator cannot accommodate the parties within that time. If the parties cannot agree upon a mediator, the Grantee will provide the Grantor with a list of at least three professional mediation organizations in the Fort Collins/Denver area that are not affiliated with the City of Fort Collins. The Grantor will select an organization from the list within ten (10) days of receipt of the list, and the selected organization will be asked to choose a mediator for the parties. The parties agree to share equally the costs and expenses of the mediation, which shall not include the expenses incurred by each party for its own legal representation in connection with the mediation. The provisions of this subparagraph may be enforced by any court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including reasonable attorneys’ fees and other legal costs, to be paid by the party against whom enforcement is ordered. p. No Waiver of Governmental Immunity. Anything else in this Deed to the contrary notwithstanding, no term or condition of this Deed shall be construed or interpreted as a waiver, either express or implied, of any of the immunities, rights, benefits or protection of the Colorado Governmental Immunity Act, C.R.S. §24-10-101, et seq., as amended or as may be amended in the future (including, without limitation, any amendments to such statute, or under any similar statute which is subsequently enacted) (“CGIA”), subject to any applicable provisions of the Colorado Constitution and applicable laws. The Parties acknowledge that liability for claims for injury to persons or property arising out of the negligence of a government entity, its members, officials, 25 A current Statement of Authority should be recorded prior to recording of this Deed for any Party that is an artificial entity, e.g. corporation, LLC, LLLC, Trust, etc. 27 agents and employees may be controlled and/or limited by the provisions of the CGIA. The Parties agree that no provision of this Deed shall be construed in such a manner as to reduce the extent to which the CGIA limits the liability of any governmental party, its members, officers, agents and employees. TO HAVE AND TO HOLD unto Grantee, its successors, and assigns forever. IN WITNESS WHEREOF, Grantor and Grantee have executed this Deed of Conservation Easement as of the Effective Date. GRANTOR: Glen T. Hazelhurst Margaret E. Hazelhurst STATE OF COLORADO ) ) ss COUNTY OF ____________ ) The foregoing instrument was acknowledged before me this day of ____________, 2019, by Glen T. Hazelhurst and Margaret E. Hazelhurst. Witness my hand and official seal. My Commission expires: _______________________________ Notary Public 28 GRANTEE: CITY OF FORT COLLINS a Colorado municipal corporation By:____________________________ , Mayor ATTEST: ________________________ City Clerk ________________________ Printed Name Approved as to Form: _______________________ Senior Assistant City Attorney ________________________ Printed Name STATE OF COLORADO ) ss. COUNTY OF LARIMER The foregoing instrument was acknowledged before me this _____ day of __________, 2019, by ____________________as Mayor of the City of Fort Collins. Witness my hand and official seal My commission expires: ______________________________ Notary Public 29 30 City Draft 7/16/19 Updated 1/2016 SECOND AMENDED AND RESTATED DEED OF CONSERVATION EASEMENT HAZELHURST PROPERTY – 5 ACRE PARCEL THIS SECOND AMENDED AND RESTATED DEED OF CONSERVATION EASEMENT (the “Second Amended Conservation Easement” or “Deed”) is made this ____ day of ___________ 2019 (“Effective Date”), by GLEN T. HAZELHURST and MARGARET E. HAZELHURST having an address of 2887 West Trilby Road, Fort Collins, CO 80526 (“Grantor”), to CITY OF FORT COLLINS, COLORADO, a municipal corporation, having its address at 300 Laporte Avenue, Fort Collins, CO 80521 (“Grantee”). (Grantor and Grantee may be individually referred to as a “Party” and collectively referred to as “Parties.”) The following exhibits are attached and incorporated: Exhibit A - Legal Description of Property Exhibit B - Map of Property Exhibit C - Baseline Acknowledgement Exhibit D - Encumbrances RECITALS A. Grantor is the sole owner in fee simple of approximately 5 acres of real property located in Larimer County, Colorado, encumbered by a conservation easement, more particularly described in Exhibit A and generally depicted on Exhibit B (the “Property”). B. The Property is encumbered by a Deed of Conservation Easement granted by Grantor to Grantee recorded on October 31, 2005 at Reception No. 20050092426 in the records of Larimer County, Colorado Clerk and Recorder, as amended by a First Amended and Restated Deed of Conservation Easement dated ______, 2019 and recorded on _______, 2019 at Reception No. _______________ in the records of the Larimer County, Colorado Clerk and Recorder (the “First Amended Conservation Easement”). C. The First Amended Easement encumbers both the Property and an adjacent 45 acre parcel (“Parcel B”), and permits both subdivision of the Property from Parcel B, and further amendment of the First Amended Easement to create two separate documents should the Property and Parcel B be conveyed into separate ownership. D. The Grantee has purchased Parcel B, and the Parties wish to restate, amend, supersede and replace the First Amended Conservation Easement and enter into a new conservation easement with respect to the Property in order to facilitate management of the Easement on the Property separately from Parcel B. EXHIBIT B-1 2 E. The Property possesses relatively natural habitat, scenic, open space, educational, and/or recreational values (collectively, “Conservation Values”) of great importance to Grantor, the people of Fort Collins and the surrounding Larimer County region and the people of the State of Colorado. In particular, the Property contains the following characteristics, which are also included within the definition of Conservation Values: i. Relatively Natural Habitat § 1.170A-14(d)(3). The Property's ecological values include a native biotic community of foothills grasslands that provide food, shelter, and migration corridors for several wildlife species, including, but not limited to, coyotes, foxes, mule deer, mountain bluebirds, golden eagles and red- tailed hawks. The grassland community present on the Property includes a globally rare plant community. The Property sustains a variety of bird species, including, but not limited to, horned larks, western meadowlarks, lark sparrows and grasshopper sparrows. Finally, the protection of the property contributes to the ecological viability of the adjacent Coyote Ridge Natural Area. ii. Open Space§ 1.170A-14(d)(4). The Property qualifies as open space because it will be preserved for the scenic enjoyment of the general public and will yield a significant public benefit. The Property is in the foreground of a view of the foothills of the Rocky Mountains from South Taft Hill Road, possesses aesthetic value as open space within the Fort Collins-Loveland Corridor, and helps provide a buffer of undeveloped land where there is a foreseeable trend of development in the vicinity of the Property in the near future, due primarily to the proximity of the Cities of Fort Collins and Loveland, which City Limits lie approximately one and one-half miles northeast and three miles southeast of the Property, respectively. The Property is adjacent to the Coyote Ridge Natural Area owned and managed by the City of Fort Collins. This public land includes a trail into the foothills directly west of the Property. As a result, much of the Property is highly visible from this public trail. Because of the immediate proximity to public open space, the Property provides a visual buffer and continuation of the open space already present to the west. There is a strong likelihood that development of the Property would lead to or contribute to degradation of the scenic and natural character of the area. Preservation of the Property will add to the scenic character of the local landscape in which it lies, and will continue to provide an opportunity for the general public to appreciate the Property's scenic values. In particular, preservation of the open, undeveloped nature of the near ridgetop will preserve important scenic qualities of the Property. It should also be noted that the terms of the Conservation Easement do not permit a degree of intrusion or future development that would interfere with the essential 3 scenic quality of the land. As such, preservation of the Property will continue to provide an opportunity for the general public to appreciate its scenic values. iii. Conservation of this Property is consistent with the following federal, state, and local governmental policies: a) C.R.S. § 33-1-101, et seq., provides in relevant part that "it is the declared 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." b) C.R.S. § 33-2-101 to 33-2-106, which provide that “it is the policy of this state to manage all nongame wildlife, recognizing the private property rights of individual owners, for human enjoyment and welfare, for scientific purposes, and to ensure their perpetuation as members of ecosystems; that species or subspecies of wildlife indigenous to this state which may be found to be endangered or threatened within the state should be accorded protection in order to maintain and enhance their numbers to the extent possible; that this state should assist in the protection of species or subspecies of wildlife which are deemed to be endangered or threatened elsewhere.” c) C.R.S. § 33-10-101 to 33-10-114, which provide that “it is the policy of the State of Colorado that the natural, scenic, scientific, and outdoor recreation areas of this state are to be protected, preserved, enhanced, and managed for the use, benefit, and enjoyment of the people of this state and visitors of this state.” d) C.R.S. § 38-30.5-101, et seq., provides for the establishment of conservation easements to maintain land "in a natural, scenic, or open condition, or for wildlife habitat, or for agricultural, horticultural, wetlands, recreational, forest, or other use or condition consistent with the protection of open land, environmental quality or life-sustaining ecological diversity, or appropriate to the conservation and preservation of buildings, sites, or structures having historical, architectural, or cultural interest or value." e) Fort Collins Natural Areas Master Plan (2014) states that “the mission of the Natural Areas Department is to conserve and enhance lands with natural resource, agricultural, and scenic values, while providing meaningful education and appropriate recreation opportunities” and establishes the conservation focus areas including the Foothills Corridor and Core Natural Areas which encompass the Property. F. Grantor intends that the Conservation Values be preserved and protected in perpetuity, and that the Deed prohibit any uses that would materially adversely affect the Conservation Values or that otherwise would be inconsistent with the Purpose (defined 4 below). The Parties acknowledge and agree that uses expressly permitted by this Deed and Grantor’s current land use patterns on the Property, including without limitation those relating to grazing existing on the Effective Date (as defined in Section 27, below), do not materially adversely affect the Conservation Values and are consistent with the Purpose. G. By granting this Deed, Grantor further intends to (i) create a conservation easement interest that binds Grantor as the owner of the Property and also binds future owners of the Property; and (ii) convey to Grantee the right to preserve and protect the Conservation Values in perpetuity. H. Grantee is a political subdivision of the State of Colorado, a home-rule municipality, and a “qualified organization” under I.R.C. § 170(h) and Treas. Reg. § 1.170A-14(c). The mission of Grantee’s Natural Areas Department is to conserve and enhance lands with natural resource, agricultural, and scenic values, while providing meaningful education and appropriate recreation opportunities. I. Grantee is also a governmental entity as required under C.R.S. § 38-30.5-101, et seq., which provides for conservation easements to maintain land and water in a natural, scenic or open condition, for wildlife habitat, or for agricultural and other uses or conditions consistent with the protection of open land in Colorado. J. Grantee is certified as license number CE.000000031 by the State of Colorado’s Division of Real Estate pursuant to C.R.S. § 12-61-724 and 4 C.C.R. 725-4, Chapter 2, to hold conservation easements for which a tax credit is claimed. K. Grantee agrees by accepting this Deed to preserve and protect in perpetuity the Conservation Values for the benefit of this and future generations. NOW, THEREFORE, pursuant to the laws of the State of Colorado, and in particular C.R.S. § 38-30.5-101, et seq., and in consideration of the recitals set forth above, and the mutual covenants, terms, conditions, and restrictions contained in this Deed, and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, Grantor voluntarily grants and conveys to Grantee, and Grantee voluntarily accepts, a conservation easement in gross in perpetuity over the Property for the Purpose set forth below and of the nature and character and to the extent set forth in this Deed. This Deed entirely amends, restates and replaces the First Amended Conservation Easement with respect to the Property. 1. Purpose. The purpose of this Deed is to ensure that Grantor preserves and protects in perpetuity the Conservation Values as they exist upon the Effective Date and as they may evolve in the future, in accordance with I.R.C. § 170(h), Treas. Reg. § 1.170A-14 and C.R.S. § 38-30.5-101 et seq. (“Purpose”). To effectuate the Purpose, Grantor and Grantee agree: (i) to allow those uses of the Property that are expressly permitted by this Deed, subject to any limitations or restrictions stated in this Deed, and those uses of the Property that do not materially adversely affect the Conservation Values; and (ii) to prevent any use of the Property that is expressly prohibited by this Deed or will 5 materially adversely affect the Conservation Values. Notwithstanding the foregoing, nothing in this Deed is intended to compel a specific use of the Property, such as agriculture, other than the preservation and protection of the Conservation Values. 2. Baseline Documentation Report. The Parties acknowledge that a written report dated September 30, 2005 was prepared by LREP, Inc., reviewed and approved, which documents the Property’s original condition (the “Baseline Report”). Either or both parties may update the Baseline Report at any time. Both parties agree to provide a copy of the new report to the other. The Baseline Report contains a natural resources inventory of the Property and also documents existing improvements on and current uses of the Property. A copy of the Baseline Report shall be kept on file with each Party and is by this reference made a part of this Deed. The Parties acknowledge that the Baseline Report is intended to establish and accurately represent the condition of the Property as of the Effective Date, and the Parties have acknowledged the same in a signed statement, a copy of which is attached as Exhibit C. The Parties will use the Baseline Report to assure that any future changes to the Property are consistent with the Purpose. However, the Parties agree that the existence of the Baseline Report shall in no way limit the Parties’ ability to use other pertinent information in resolving any controversy that may arise with respect to the condition of the Property as of the Effective Date. 3. Rights of Grantee. To accomplish the Purpose, in addition to the rights of the Grantee described in C.R.S. § 38-30.5-101 et seq., and the rights of Grantee described elsewhere in this Deed, the Deed conveys the following rights to Grantee: a. Right to Protect the Conservation Values. To preserve and protect the Conservation Values in perpetuity by administering, managing and enforcing the terms of this Deed; b. Right to Access the Property. To enter upon the Property at reasonable times to monitor Grantor’s compliance with and, if necessary, to enforce the terms of this Deed. Such entry shall be made upon prior reasonable notice to Grantor, except in the event Grantee reasonably determines that immediate entry upon the Property is necessary to prevent or mitigate a violation of this Deed. In the case where Grantee has determined that immediate entry is necessary, a reasonable attempt will be made to notify Grantor prior to such entry. Grantee shall not unreasonably interfere with Grantor’s use and quiet enjoyment of the Property when exercising any such rights; c. Right to Prevent Inconsistent Activities and Require Restoration of Disturbed Areas. To prevent any activity on or use of the Property that is inconsistent with the Purpose or the express terms of this Deed and to require the restoration of such areas or features of the Property that may be damaged by any inconsistent use; and d. Right of Review. To require Grantor to consult with Grantee regarding the negotiations of any and all agreements between Grantor and third parties that may impact or disturb any portion of the surface of the Property, including but not limited to easement agreements, utility easements, right of way agreements, surface use agreements, and lease agreements (other than those specifically related to the agricultural and 6 recreational operations of the Property), and to have the right to approve any such agreement prior to such agreement being executed. Within 60 days of consulting with Grantor in writing, Grantee shall provide Grantor with a decision or explain to Grantor why Grantee reasonably requires no more than an additional 30 days to reach a decision. Grantee’s approval shall not be unreasonably withheld, but nothing in this Deed is intended to require Grantee to approve any action or agreement that is inconsistent with the terms of this Deed. 4. Reserved Rights. Subject to the terms of the Deed, Grantor reserves to Grantor, and to Grantor’s personal representatives, heirs, successors, and assigns, all rights accruing from Grantor’s ownership of the Property, including (i) the right to engage in or permit or invite others to engage in all uses of the Property that are expressly permitted by this Deed, subject to any limitations or restrictions stated in this Deed, and those uses of the Property that do not materially adversely affect the Conservation Values; and (ii) to retain the economic viability of the Property and retain income derived from the Property from all sources, unless otherwise provided in this Deed, that are consistent with the terms of this Deed. Grantor may not, however, exercise these retained rights in a manner that is expressly prohibited by this Deed or that materially adversely affects the Conservation Values. Without limiting the generality of the foregoing, Grantor reserves the following specific rights: a. Right to Convey. Grantor may sell, give, lease, bequeath, devise, mortgage, or otherwise encumber or convey the Property, subject to the following: (i) any lease, deed, or other conveyance or encumbrance is subject to this Deed, and any such document shall specifically incorporate the terms and conditions of this Deed by reference to this Deed; (ii) any lease or deed or other conveyance document shall specifically state which reserved rights have been exercised, if at all, and which reserved rights are specifically allocated to the new owner or lessee; and (iii) notice of any proposed conveyance or encumbrance as set forth in this Section 4.a shall be subject to the provisions of Section 19 of this Deed. b. Subdivision. Any division or subdivision of title to the Property, whether by legal or physical process, into two or more parcels of land or partial or separate interests (including but not limited to condominium interests or the partition of undivided interests) is prohibited, other than conveyances to public entities for public roads or other public improvements consistent with this Deed. Nothing in this subparagraph shall be construed to prohibit ownership of the Property by an entity consisting of more than one member. c. Resource Management. To accomplish the preservation and protection of the Conservation Values in perpetuity, Grantor shall operate, manage and maintain the Property in a manner that promotes the continued viability of the natural resources on the Property while maintaining any permissible productive uses of the Property, subject to the provisions of Section 6 of this Deed. Specifically, Grantor agrees to conduct the activities listed below in a manner consistent with the Purpose. Notwithstanding the foregoing, Grantor and Grantee recognize that changes in economic conditions, in 7 agricultural technologies, in accepted farm, ranch and forest management practices, and in the situation of Grantor may result in an evolution of agricultural, silvicultural, and other uses of the Property, and such uses are permitted if they are consistent with the Purpose. (1) Habitat Management. Grantor may conduct any activities to create, maintain, restore, or enhance wildlife habitat and native biological communities on the Property, provided that such activities do not have more than a limited, short-term adverse effect on the Conservation Values. (i) Weed/Pest Management. Management of land to control erosion, growth of weeds and brush, rodents, pests, insects and pathogens, fire danger and other threats is permitted consistent with applicable laws and regulations and in keeping with maintenance of the Conservation Values of the Property, and in accordance with the Land Management Plan described in Section 6 below. The Grantor agrees to manage noxious weeds in accordance with the requirements of Larimer County, the State of Colorado and other applicable agencies. (ii) Maintenance/Restoration. Maintenance, stabilization, replacement, or restoration of existing croplands, springs, ditches and pastureland, are permitted. Wetland pond restoration and creation are permitted if and to the extent consistent with the Purpose and the terms of this Deed. (iii) Prescribed Fire. Igniting outdoor prescribed fires for agricultural or ecological purposes shall be allowed on the Property, provided that such activity is conducted in accordance with accepted prescribed burn practices, all applicable laws or regulations, and the Land Management Plan described in Section 6 below. (2) Agriculture. Grantor reserves the right to use the Property for grazing livestock. Grantor shall conduct all agricultural activities using stewardship and management methods that preserve the natural resources upon which agriculture is based. Long-term stewardship and management goals include preserving soil productivity, maintaining natural stream channels, preventing soil erosion, minimizing invasive species, avoiding unsustainable livestock grazing practices, and minimizing loss of vegetative cover. (i) Grazing. Livestock grazing is permitted in accordance with sound stewardship and management practices, and shall be managed so that the overall condition of the Property is preserved at its baseline condition and in no 8 event in less than “fair” condition (as defined by an applicable U.S. Department of Agriculture - Natural Resources Conservation Service (NRCS) Technical Guide). For the purposes of this Deed “livestock” shall mean cattle, horses, sheep, goats, llamas, alpaca, and bison. The raising of other livestock and/or game animals shall not be permitted unless specifically approved by the Grantee and described in the Land Management Plan. The Grantor shall comply with and have responsibility for compliance of the Property with the Colorado Noxious Weed Act and any other governmental noxious weed control regulations. (ii) Other Agricultural Uses. Gardening, beekeeping, and an orchard, all solely for consumption by the onsite residents, is allowed within in an area less than one acre in size. (3) Timber Management. Trees may be cut to control insects and disease, to control invasive non-native species, to prevent personal injury and property damage, to promote forest health, and for fire mitigation purposes including limited and localized tree and vegetation thinning and the creation of defensible space for permitted improvements. Collecting of firewood from dead or downed trees, or the use of trees cut as part of forest health management for firewood is permitted. In addition, trimming brush and trees to create a vehicular throughway to accomplish land management is permitted. Any large-scale fire mitigation activities or commercial timber harvesting on the Property shall be conducted on a sustainable yield basis and in substantial accordance with a forest management plan prepared by a competent professional forester. Any large- scale fire mitigation activities or timber harvesting shall be conducted in a manner that is consistent with the Purpose. A copy of the forest management plan shall be approved by Grantee prior to any large-scale fire mitigation activities or commercial timber harvesting. d. Recreational Activities. Grantor reserves the right to engage in non- commercial, non-motorized passive recreational activities, such as horseback riding, hiking, cross-country skiing, snowshoeing, and other similar low-impact recreational uses, to be enjoyed solely by Grantor and Grantor’s family and guests. e. Hunting. No hunting, shooting, or trapping of any animals shall be permitted on the Property with the following exceptions: (1) live-trapping of prairie dogs for relocation pursuant to Section 4.l. herein; (2) trapping of small mammals for rodent control within the Building Envelope; (3) live-trapping for research purposes. 9 No public, commercial or recreational use of the Property for hunting, shooting or trapping of any animals, or for any other recreational use, is allowed. f. Improvements. (1) Residential and Non-Residential Improvements. The Property currently contains one residential structure consisting of approximately two thousand one hundred and twenty-three (2,123) square feet. Grantor may maintain, repair, replace, or reasonably enlarge this residential structure to a size that does not exceed three thousand (3,000) square feet in total (excluding unfinished basement areas but including any living space above an attached or detached garage). Any other improvements existing on the Property as of the Effective Date are also permitted, and Grantor may maintain, repair, replace and reasonably enlarge such improvements in their current locations without Grantee’s approval. Typical residential landscaping, which may be non-native but shall not be invasive species, is permitted within 100 feet of actual buildings within the Building Envelope and native trees, shrubs, grasses, and wildflowers may be planted outside the 100 foot limit area within the Building Envelope. Grantor reserves the right to construct or place Residential Improvements and Non-Residential Improvements, defined below, and Grantor shall provide prior notice of such construction to Grantee in accordance with Section 7 of this Deed. Once constructed, Grantor may maintain, repair, replace and reasonably enlarge such new improvements in their initially constructed locations without Grantee’s approval. Any new Non-Residential Improvement requiring a building permit or exceeding 800 square feet in total floor area and not expressly provided for in the Land Management Plan described in Section 6 below shall require prior written approval by the Grantee, in its reasonable discretion. “Residential Improvements” shall mean covered improvements containing habitable space intended for full- or part-time human habitation, including but not limited to homes, cabins, guest houses, mobile homes, yurts, tepees, and any space attached to any such improvement such as a garage or covered porch. “Non- Residential Improvements” shall mean all other covered or uncovered agricultural and non-residential improvements that are not intended for human habitation, including but not limited to barns, hay storage areas, machine shops, sheds, free-standing garages, well houses, outhouses, gazebos, picnic areas, sport courts, pools, outdoor kitchens, parking areas, and indoor and outdoor riding arenas, fences (subject to the terms of Section 4.f of this Deed), corrals, hayracks, cisterns, stock tanks, stock ponds, troughs, fenced hay stacks, livestock feeding stations, hunting blinds, wildlife viewing platforms, sprinklers, water lines, water wells, ditches, information kiosks, trail markers and trash receptacles. The Property currently contains one outbuilding consisting of approximately one thousand two hundred (1,200) square feet and another building consisting of approximately three hundred (300) square feet. may construct, place, replace or enlarge Residential and Non-Residential Improvements on the Property subject to the following limitations: (i) One single family residence (ii) Maximum square footage for single family residence shall 10 be 3,000 square feet of living space. (iii) Maximum square footage for any non-residential building shall not exceed 2,000 square feet in gross floor area. (iv) Maximum square footage for all outbuildings shall not exceed 4,000 square feet. g. Roads and Trails. Maintenance of existing Roads and Trails is permitted. “Roads” shall mean any road that is graded, improved or maintained, including seasonal unimproved roads and two-track roads. “Trails” shall mean any unimproved or improved path, or paved or unpaved trail constructed or established by human use, but shall not include game trails established and used by wildlife only. Prior to the construction or establishment of any Road or Trail, Grantor shall provide notice to Grantee in accordance with Section 7 of this Deed. (1) Grantor shall not construct or establish Roads except those existing Roads depicted on Exhibit B, or such other Roads as Grantee determines are consistent with the Purpose. Grantor shall not construct or establish any Road wider than necessary to provide access for all permitted uses or to meet local codes for width of access to improvements permitted by this Deed. Grantor shall not pave or otherwise surface a Road with any impervious surface, except if Grantee determines the paving of the Road is consistent with the Purpose. (2) Grantor shall not construct or establish any new Trail on the Property unless Grantee determines a new Trail is consistent with the Purpose. Grantor may construct approved Trails, and trail head access roads and parking for appropriate, public trail recreation including hiking, wildlife watching, horseback riding, and mountain biking. Trail recreation shall be non-motorized except as required for compliance with the Americans with Disabilities Act or other applicable laws. h. Fences. Existing fences may be maintained, repaired and replaced, and new fences may be built anywhere on the Property. The location and design of any fencing shall facilitate and be compatible with the movement of wildlife across the Property and otherwise consistent with the Purpose. i. Water Facilities. Maintenance, development and construction of water facilities such as water wells, livestock watering wells, windmills, springs, water storage tanks, hydrants, pumps and/or well houses and similar minor agricultural infrastructure that are solely for use on the Property in conjunction with those activities on the Property permitted by this Deed, including providing drinking water for users and livestock on the Property, for use by the Grantor, Grantor’s lessees and/or invitees, are permitted. Any facilities pursuant to this paragraph shall be sited and constructed or placed so as not to substantially diminish or impair the Conservation Values of the. 11 j. Utility Improvements. Any energy generation or transmission infrastructure and other utility improvements on the Property that already exist on the Property pursuant to an easement or other instrument recorded on or prior to the Effective Date, or later approved by Grantor after notice to Grantee in accordance with Section 7 of this Deed, may be repaired or replaced with an improvement of similar size and type at their current locations on the Property without further permission from Grantee. Utility improvements include but are not limited to: (i) natural gas distribution pipelines, electric power poles, transformers, and lines; (ii) telephone and communications towers, poles, and lines; (iii) water wells, domestic water storage and delivery systems; and (v) renewable energy generation systems including but not limited to wind, solar, geothermal, or hydroelectric for use on the Property (“Utility Improvements”). Any new or expanded Utility Improvements must be consistent with the Purpose, and Grantor shall not enlarge or construct any additional Utility Improvements without Grantee’s approval. However, Grantor reserves the right to construct Utility Improvements solely to provide utility services to the improvements permitted by this Deed, provided that no Utility Improvement exceeds 35 feet in height. Utility Improvements shall be located underground to the extent practicable. (1) Additional Requirements. Prior to the enlargement or construction of any Utility Improvements on the Property, Grantor shall provide notice to Grantee in accordance with Section 7 of this Deed. Following the repair, replacement, enlargement or construction of any Utility Improvements, Grantor shall promptly restore any disturbed area to a condition consistent with the Purpose. (2) Alternative Energy. (i) Wind, solar, and hydroelectric generation facilities that are primarily for the generation of energy for use on the Property in conjunction with those activities permitted by this Deed (collectively “Alternative Energy Generation Facilities”) may be constructed in accordance with this Section 4.j(2). Any other Alternative Energy Generation Facilities may only be constructed with the prior written approval of Grantee in Grantee’s sole discretion. Without limiting Grantee’s right to withhold such approval in its sole discretion, factors that Grantee may consider in determining whether to grant such approval shall include but not be limited to (a) whether the installation and siting would substantially diminish or impair the Conservation Values, (b) the physical impact of the proposed facility on the Conservation Values, (c) the feasibility of less impactful alternatives, and (d) such other factors as Grantee may determine are relevant to the decision. The construction of Alternative Energy Generation Facilities that are not for use primarily in conjunction with those activities permitted by this Deed are prohibited anywhere on the Property. Nothing in this Section 4.j(2) shall be construed as permitting the construction or establishment of a wind farm or commercial solar energy production facility. (ii) Any energy generated by Alternative Energy Generation Facilities constructed in accordance with this Section 4.j(2) that is incidentally in excess 12 of Grantor’s consumption may be sold, conveyed, or credited to a provider of retail electric service to the extent permitted by Colorado law. (iii) In the event of technological changes or legal changes that make “expanded” Alternative Energy Generation Facilities more compatible with I.R.C. Section 170(h) or any applicable successor law, Grantee in its sole discretion may approve expanded Alternative Energy Generation Facilities that would not substantially diminish or impair the Conservation Values. For the purposes of this Section 4.j(2)(iii), the term “expanded” shall mean the development of Alternative Energy Generation Facilities to an extent that is greater than the level permitted by Sections 4.j(2)(i) and 4.j(2)(ii). l. Animal Control. Requirements for the control and eradication through live trapping or fumigation of prairie dogs and other animals on the Property shall be in accordance with the requirements for said activities set forth in the City Code of the City of Fort Collins, Colorado (“City”), as the same would apply within the City whether or not the Property is within the City limits, except to the extent compliance with the same would necessarily result in violation of an applicable requirement of Larimer County. Grantor shall be allowed to control prairie dogs but shall comply with the requirements for the use of pesticides or otherwise related to the management of prairie dogs set forth in the City Code of the City of Fort Collins, without regard to whether the Property is within the boundaries of the City of Fort Collins. Grantor shall consult with Grantee in advance of taking any action to control, eradicate, or relocate prairie dogs, and any such action shall be consistent with Grantee's requirements associated with the protection of the Conservation Values of the Property or the purposes of this Easement. In any event, when using pesticides to control animal species on the Property, Grantor shall use only EPA-approved pesticides in approved amounts properly applied to appropriate habitats. Grantee encourages establishment and retention of prairie dogs on the Property. Prairie dog visual barriers may be installed to confine the prairie dog colony to a portion of the Property. Planting of native trees, shrubs, and other native plants to enhance wildlife habitat in appropriate locations on the Property are encouraged, but will be permitted only with the consent of the Grantee 5. Prohibited and Restricted Uses. Any activity on or use of the Property inconsistent with the Purpose is prohibited. Without limiting the generality of the foregoing, the following activities and uses are expressly prohibited or restricted as set forth below: a. Development Rights. To fulfill the Purpose, Grantor conveys to Grantee all development rights, except those expressly reserved by Grantor in this Deed, deriving from, based upon or attributable to the Property in any way, including but not limited to all present and future rights to divide the Property for the purpose of development into residential, commercial or industrial lots or units or to receive density or development credits for the same for use off of the Property (“Grantee’s Development Rights”). The Parties agree that Grantee’s Development Rights shall be held by Grantee in perpetuity in order to fulfill the Purpose, and to ensure that such rights are forever released, terminated and extinguished as to Grantor, and may not be used on or transferred off of the Property to any other property or used for the purpose of calculating density credits or permissible 13 lot yield of the Property or any other property. b. Residential, Non-Residential and Minor Non-Residential Improvements. Grantor shall not construct or place any Residential Improvements, Non-Residential Improvements or Minor Non-Residential Improvements on the Property except in accordance with Section 4.f of this Deed. c. Recreational and Commercial Improvements. Grantor shall not construct or place any new recreational improvement on the Property, including but not limited to athletic fields, golf courses or ranges, race tracks, airstrips, helicopter pads, or shooting ranges. Grantor shall not construct or place any new commercial improvement on the Property. d. Removal of Vegetation and Timber Harvesting. Except as otherwise set forth in this Deed, Grantor shall not remove any vegetation, including shrubs and trees, or harvest any timber from the Property except in accordance with Section 4.b(3). e. Mineral Extraction. As of the Effective Date, Grantor owns all of the coal, oil, gas, hydrocarbons, sand, soil, gravel, rock and other minerals of any kind or description (the “Minerals”) located on, under, or in the Property or otherwise associated with the Property. This Deed expressly prohibits the mining or extraction of Minerals using any surface mining method. Notwithstanding the foregoing, Grantor and Grantee may permit mineral extraction utilizing methods other than surface mining if the method of extraction has a limited, localized impact on the Property that is not irremediably destructive of the Conservation Values. However, Grantor and Grantee agree that the following provisions shall apply to any such proposed mineral extraction by Grantor or any third party, as applicable: (1) Soil, Sand, Gravel and Rock. Grantor may extract soil, sand, gravel or rock without further permission from Grantee so long as such extraction: (i) is solely for use on the Property for non-commercial purposes; (ii) is in conjunction with activities permitted in this Deed, such as graveling roads and creating stock ponds; (iii) is accomplished in a manner consistent with the preservation and protection of the Conservation Values; (iv) does not result in more than one half-acre of the Property being disturbed by extraction at one time, and uses methods of mining that may have a limited and localized impact on the Property but are not irremediably destructive of the Conservation Values; and (v) is reclaimed within a reasonable time by refilling or some other reasonable reclamation method for all areas disturbed. This provision shall be interpreted in a manner consistent with I.R.C. § 170(h), as amended, and the Treasury Regulations adopted pursuant thereto. 11 (2) Oil and Gas. Grantor, or a third party permitted by Grantor, may explore for and extract oil and gas owned in full or in part by Grantor, provided Grantor ensures 11 This paragraph is only appropriate where Grantor has reserved limited development and/or road construction rights. It should be deleted if there is no reserved development on the Property. 14 that such activities are conducted in a manner that does not constitute surface mining and complies with the following conditions: (i) The exploration for or extraction of oil, gas and other hydrocarbons is conducted in accordance with a plan (the “Oil and Gas Plan”), prepared at Grantor’s expense and approved in advance by Grantee. The Oil and Gas Plan shall describe: (a) the specific activities proposed; (b) the specific land area to be used for well pad(s), parking, staging, drilling, and any other activities necessary for the extraction of oil and gas, and the extent of the disturbance of such land area before and after reclamation; (c) the location of facilities, equipment, roadways, pipelines and any other infrastructure to be located on the Property; (d) the method of transport of oil or gas produced from the Property; (e) the method of disposal of water, mining byproducts and hazardous chemicals produced by or used in the exploration and development of the oil or gas; (f) the proposed operation restrictions to minimize impacts on the Conservation Values, including noise and dust mitigation and any timing restrictions necessary to minimize impacts to wildlife; (g) the reclamation measures necessary to minimize disturbance to and reclaim the surface of the Property, including restoring soils to the original contours and replanting and re-establishing native vegetation using specific seed mixes and processes to ensure successful re-vegetation of the Property, including and in addition to those measures required by law; and (h) remedies for damages to the Conservation Values. (ii) No tank batteries, refineries, secondary production facilities, compressors, gas processing plants, or other similar facilities may be located on the Property. (iii) Areas of surface disturbance shall be mitigated promptly in accordance with the Oil and Gas Plan. (iv) Travel for the purpose of oil or gas development shall be restricted to existing roads or to new roads approved in advance in writing by Grantee as part of the Oil and Gas Plan. (v) Well facilities and pipelines shall either be placed underground, or screened, or concealed from view using existing topography, existing native vegetation, newly planted but native vegetation, and/or use of natural tone coloring. Pipelines shall be located along or under existing roadways to the maximum extent possible. (vi) Drilling equipment may be located above ground without concealment or screening, provided that such equipment shall be promptly removed after drilling is completed. (vii) Any soil or water contamination due to the exploration for or extraction of oil or gas must be promptly remediated at the expense of Grantor. 15 (viii) Any water, mining byproducts or hazardous chemicals produced by or used in the exploration and development of the oil or gas shall not be stored or disposed of on the Property. (ix) Flaring to enhance oil production is prohibited; flaring for emergencies or operational necessity is permitted. (x) Grantee shall be released and, to the extent permitted by law, indemnified and held harmless from any liabilities, damages, or expenses resulting from any claims, demands, costs or judgments arising out of the exercise of any rights by Grantor, any lessees or other third parties relating to the exploration for or extraction of oil, gas or hydrocarbons. (3) Third-Party Mineral Extraction. If a third party owns all, or controls some, of the Minerals, and proposes to extract Minerals from the Property, Grantor shall immediately notify Grantee in writing of any proposal or contact from a third party to explore for or develop the Minerals on the Property. Grantor shall not enter into any lease, surface use agreement, no-surface occupancy agreement, or any other instrument related to Minerals associated with the Property (each, a “Mineral Document”), with a third party subsequent to the Effective Date without providing a copy of the same to Grantee prior to its execution by Grantor for Grantee’s review and approval. 12 Any Mineral Document shall require that Grantor provide notice to Grantee whenever notice is given to Grantor, require the consent of Grantee for any activity not specifically authorized by the instrument, and give Grantee the right, but not the obligation, to object, appeal and intervene in any action in which Grantor has such rights. Any Mineral Document must either (i) prohibit any access to the surface of the Property or (ii) must (a) limit the area(s) of disturbance to a specified area(s); (b) include provisions that ensure that the proposed activities have a limited, localized impact on the Property that is not irremediably destructive of the Conservation Values; and (c) contain a full description of the activities proposed, a description of the extent of disturbance, the location of facilities, equipment, roadways, pipelines and any other infrastructure, the proposed operation restrictions to minimize impacts on the Conservation Values, reclamation measures including and in addition to those required by law, and remedies for damages to the Conservation Values. Any Mineral Document that only permits subsurface access to Minerals but prohibits any access to the surface of the Property shall also prohibit any disturbance to the subjacent and lateral support of the Property, and shall not allow any use that would materially adversely affect the Conservation Values. (4) This Section 5.e shall be interpreted in a manner consistent with I.R.C. § 170(h) and the Treasury Regulations adopted pursuant thereto. f. Trash. The dumping or accumulation of any kind of trash or refuse on the Property, including but not limited to household trash and hazardous chemicals, is prohibited. Limited dumping or accumulation of other agriculture-related trash and refuse 12 If there is an active oil and gas lease on the Property, you will need to consult with Grantee about drafting certain additional protections. 16 produced on the Property is permitted, provided that such dumping does not substantially diminish or impair the Conservation Values and is confined within a total area less than one-quarter acre at any given time. This Section 5.f shall not be interpreted to prevent the storage of agricultural products and by-products on the Property in accordance with all applicable government laws and regulations. g. Motorized Vehicles. Motorized vehicles may be used only in conjunction with activities permitted by this Deed and in a manner that is consistent with the Purpose. Off-road vehicle courses for snowmobiles, all-terrain vehicles, motorcycles, or other motorized vehicles are prohibited. h. Commercial or Industrial Activity. (1) No industrial uses shall be allowed on the Property. Commercial uses are allowed, as long as they are conducted in a manner that is consistent with I.R.C. § 170(h) and the Purpose. Without limiting other potential commercial uses that meet the foregoing criteria, the following uses are allowed: (i) Breeding and grazing livestock, such as cattle, horses, sheep, and similar animals; (2) The foregoing descriptions of allowed commercial uses notwithstanding, commercial feed lots and other intensive growth livestock farms, such as dairy, swine, or poultry farms, are inconsistent with the Purpose and are prohibited. For purposes of this Deed, "commercial feed lot" is defined as a permanently constructed confined area or facility within which the Property is not grazed or cropped annually, and which is used and maintained for purposes of engaging in the commercial business of the reception and feeding of livestock. i. Signage or Billboards. No commercial signs, billboards, awnings, or advertisements shall be displayed or placed on the Property, except for appropriate and customary ranch or pasture identification signs, “for sale” or “for lease” signs alerting the public to the availability of the Property for purchase or lease, “no trespassing” signs, signs regarding the private leasing of the Property for hunting, fishing or other low- impact recreational uses, and signs informing the public of the status of ownership. Any such signs shall be located and designed in a manner consistent with the Purpose. 6. Land Management / Management Plan. Grantor and Grantee acknowledge that the preservation and protection of the Conservation Values as contemplated under this Deed require careful and thoughtful stewardship of the Property. To facilitate periodic communication between Grantor and Grantee about management issues that may impact the Conservation Values, the Property shall be operated and managed in accordance with a “Management Plan” jointly prepared and agreed upon by Grantor and Grantee on or before the Effective Date. The Parties shall review the Management Plan at least every five years and update it if either Party determines an update is necessary. 17 7. Grantor Notice and Grantee Approval. The purpose of requiring Grantor to notify Grantee prior to undertaking certain permitted activities is to afford Grantee an opportunity to ensure that the activities in question are designed and carried out in a manner consistent with the Purpose. Whenever notice is required, Grantor shall notify Grantee in writing within a reasonable period of time prior to the date Grantor intends to undertake the activity in question. The notice shall describe the nature, scope, design, location, timetable, and any other material aspect of the proposed activity in sufficient detail to permit Grantee to make an informed judgment as to its consistency with the Purpose. Where Grantee's approval is required, Grantor shall not undertake the requested activity until Grantor has received Grantee’s approval in writing. Grantee shall grant or withhold its approval in writing within the time frame described in Paragraph 3d above, following receipt of Grantor’s written request and sufficient supporting details as described above. Grantee's approval may be withheld only upon Grantee’s reasonable determination that the activity as proposed is not consistent with the Purpose or the express terms of this Deed, unless this Deed provides that approval for a particular request may be withheld in the sole discretion of the Grantee. 8. Enforcement. The Grantee shall have the right to prevent and correct or require correction of violations of the terms of this Deed and the purposes of the Easement. If Grantee finds what it believes is a violation of this Deed, Grantee shall immediately notify the Grantor in writing of the nature of the alleged violation. Upon receipt of this written notice, Grantor shall either: a. Restore the Property to its condition prior to the violation; or b. Provide a written explanation to Grantee of the reason why the alleged violation should be permitted, in which event the Parties agree to meet as soon as possible to resolve their differences. If a resolution cannot be achieved at the meeting, the Parties may meet with a mutually acceptable mediator to attempt to resolve the dispute. Grantor shall discontinue any activity that could increase or expand the alleged violation during the mediation process. If the Grantor refuses to undertake mediation in a timely manner or should mediation fail to resolve the dispute, Grantee may, at its discretion, take appropriate legal action. Notwithstanding the foregoing, when Grantee, in its sole discretion, determines there is an ongoing or imminent violation that could irreversibly diminish or impair the Conservation Values, Grantee may, at its sole discretion, take appropriate legal action without pursuing mediation, including but not limited to seeking an injunction to stop the alleged violation temporarily or permanently or to require the Grantor to restore the Property to its prior condition. 9. Costs of Enforcement. Grantor shall pay any costs incurred by Grantee in enforcing the terms of this Deed against Grantor, including without limitation costs and expenses of suit, attorney fees and any costs of restoration necessitated by Grantor’s violation of the terms of this Deed. If the deciding body determines that the Grantor has prevailed in any such legal action, then each Party shall pay its own costs and attorney fees. However, if the deciding body determines that Grantee’s legal action was frivolous or groundless, Grantee shall pay the Grantor’s costs and attorney fees in defending the legal action. 18 10. No Waiver or Estoppel. Enforcement of the terms of this Deed shall be in the Grantee’s discretion. If the Grantee does not exercise, or delays the exercise of, its rights under this Deed in the event of a violation of any term, such inaction or delay shall not be deemed or construed to be a waiver by Grantee of such term or of any subsequent violation of the same or any other term of this Deed or of any of Grantee's rights under this Deed. Grantor waives any defense of laches, estoppel, or prescription, including the one-year statute of limitations for commencing an action to enforce the terms of a building restriction or to compel the removal of any building or improvement because of the violation of the same under C.R.S. § 38-41-119, et seq. 11. Acts Beyond Grantor’s Control. Nothing contained in this Deed shall be construed to entitle Grantee to bring any action against Grantor for any injury to or change in the Property resulting from causes beyond Grantor’s control, including without limitation fire, flood, storm, and earth movement, 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. Notwithstanding the foregoing, Grantor shall take reasonable efforts to prevent third parties from performing, and shall not knowingly allow third parties to perform, any act on or affecting the Property that is inconsistent with the Purpose. 12. Access. No right of access by the general public to any portion of the Property is conveyed by this Deed. 13. Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the Property, including weed control and eradication and maintaining adequate comprehensive general liability insurance coverage. Grantor shall keep the Property free of any liens arising out of any work performed for, materials furnished to, or obligations incurred by Grantor. 14. Taxes. Grantor shall pay before delinquency all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Property by competent authority (collectively “Taxes”), including any Taxes imposed upon, or incurred as a result of, this Deed, and shall furnish Grantee with satisfactory evidence of payment upon request. 15. Hold Harmless. To the extent permitted by law, Grantor shall hold harmless, indemnify, and defend Grantee and its members, directors, officers, employees, agents, and contractors and the heirs, representatives, successors, and assigns (the “Indemnified Party”) from and against all liabilities, penalties, costs, losses, damages, expenses, causes of action, claims, demands, or judgments, including without limitation reasonable attorneys' fees, arising from or in any way connected with: (1) 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 negligence of the Indemnified Party; (2) the obligations 19 specified in Section 8; and (3) the presence or release of hazardous or toxic substances on, under or about the Property. For the purpose of this Section 15, hazardous or toxic substances shall mean any hazardous or toxic substance that is regulated under any federal, state or local law. Without limiting the foregoing, nothing in this Deed shall be construed as giving rise to any right or ability in Grantee, nor shall Grantee have any right or ability, to exercise physical or managerial control over the day-to-day operations of the Property, or otherwise to become an operator with respect to the Property within the meaning of The Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, or any similar law or regulation. 16. Real Property Interest. The conservation easement interest created by this Deed constitutes a real property interest immediately vested in Grantee. The Parties stipulate that this conservation easement interest has a fair market value equal to ten percent (10%) of the full unencumbered fair market value of the Property (the “Easement Value Percentage”). The values at the time of this Deed shall be those values used to calculate the deduction for federal income tax purposes allowable by reason of this grant, pursuant to I.R.C. § 170(h), whether or not Grantor claims any deduction for federal income tax purposes. The Easement Value Percentage shall remain constant. 17. Condemnation or Other Extinguishment. If this Deed is taken, in whole or in part, by exercise of the power of eminent domain (“Condemnation”), or if circumstances arise in the future that render the Purpose impossible or impractical to accomplish, this Deed can only be terminated, whether in whole or in part, by judicial proceedings in a court of competent jurisdiction. Each Party shall promptly notify the other Party in writing when it first learns of such circumstances. Grantee shall be entitled to full compensation for its interest in any portion of this Deed that is terminated as a result of Condemnation or other proceedings. Grantee’s proceeds shall be an amount at least equal to the Easement Value Percentage multiplied by the value of the unencumbered fee simple interest (excluding the value of any improvements) in the portion of the Property that will no longer be encumbered by this Deed as a result of Condemnation or termination. Grantor shall not voluntarily accept proceeds equal to less than the full fair market value of the affected Property unrestricted by this Deed without the approval of Grantee. Grantee shall use its proceeds in a manner consistent with the conservation purposes of this Deed. Grantee's remedies described in this Section 17 shall be cumulative and shall be in addition to any and all remedies now or hereafter existing at law or in equity, including the right to recover any damages for loss of Conservation Values as described in C.R.S. § 38-30.5-108. 18. Assignment. a. This Deed is transferable, but Grantee may assign its rights and obligations under this Deed only to an organization that: (1) is a qualified organization at the time of transfer under I.R.C. § Section 170(h) as amended (or any successor provision then applicable) and the applicable regulations promulgated thereunder; 20 (2) is authorized to acquire and hold conservation easements under Colorado law; (3) agrees in writing to assume the responsibilities imposed on Grantee by this Deed; and b. If Grantee desires to transfer this Deed to a qualified organization having similar purposes as Grantee but Grantor has refused to approve the transfer, Grantee may seek an order by a court with jurisdiction to transfer this Deed to another qualified organization having similar purposes that agrees to assume the responsibility imposed on Grantee by this Deed, provided that Grantor shall have adequate notice of and an opportunity to participate in the court proceeding leading to the court’s decision on the matter. c. Upon compliance with the applicable portions of this Section 18, the Parties shall record an instrument completing the assignment in the property records of the county or counties in which the Property is located. Assignment of the Deed shall not be construed as affecting the Deed’s perpetual duration and shall not affect the Deed’s priority against any intervening liens, mortgages, easements, or other encumbrances. 19. Subsequent Transfers. Grantor shall notify the Grantee in writing at least thirty (30) days in advance of the proposed conveyance of any interest in all or any portion of the Property, including any conveyance under threat of condemnation, and shall incorporate by reference the terms and conditions of this Deed in any deed or other legal instrument by which it divests itself of any interest in all or a portion of the Property, except conveyance of a leasehold interest that is no longer than one year in duration or an agricultural lease, that is otherwise consistent in all respects with the terms of this Deed. The failure of Grantor to perform any act required by this Section 19 shall not impair the validity of this Deed or limit its enforceability in any way. 20. Notices. Any notice, demand, request, consent, approval, or communication that either Party is required to give to the other in writing shall be either served personally or delivered by (a) certified mail, with return receipt requested; or (b) a commercial delivery service that provides proof of delivery, addressed as follows: To Grantor: Glen and Margaret Hazelhurst 2887 W. Trilby Road Fort Collins, CO 80526 To Grantee: City of Fort Collins Natural Areas Department c/o John Stokes, Natural Areas Director P.O. Box 580 21 Fort Collins, CO 80522 or to such other address as either Party from time to time shall designate by written notice to the other. 21. Grantor’s Title Warranty. Grantor warrants that Grantor has good and sufficient title to the Property and Grantor has access to the Property for the purposes granted or permitted to Grantee in this Deed, and Grantor promises to defend the same against all claims whatsoever. Grantor’s warranty of title is further subject to the encumbrances set forth on Exhibit D, attached hereto and incorporated herein by this reference. 22. Subsequent Liens on the Property. No provisions of this Deed shall be construed as impairing the ability of Grantor to use this Property as collateral for subsequent borrowing, provided that any deed of trust, mortgage or lien arising from such a borrowing shall not encumber less than all of the Property, and shall be subordinate to this Deed for all purposes so that any such instrument expressly shall be deemed to have been recorded after this Deed and so that any foreclosure of such deed of trust, mortgage or lien shall not affect any provision of this Deed, including without limitation its perpetual nature, the payment of proceeds as described in Section 17 above, and the limitation of Section 5.e. 23. Recording. Grantee shall record this Deed in a timely fashion in the official records of each county or counties in which the Property is situated, and may re-record it at any time as may be required to preserve its rights in this Deed. 24. Environmental Attributes. Unless otherwise provided in this Deed, Grantor reserves all Environmental Attributes associated with the Property. “Environmental Attributes” shall mean any and all tax or other credits, benefits, renewable energy certificates, emissions reductions, offsets, and allowances (including but not limited to water, riparian, greenhouse gas, beneficial use, and renewable energy), generated from or attributable to the conservation, preservation and management of the Property in accordance with this Deed. Nothing in this Section 24 shall modify the restrictions imposed by this Deed or otherwise be inconsistent with the Purpose. 25. Tax Benefits. Grantor acknowledges that Grantor is responsible for obtaining legal and accounting counsel to advise Grantor regarding the applicability of federal or state tax benefits that might arise from the bargain sale (sale at less than fair market value) or donation of the Deed. Grantee makes no representation or warranty that Grantor will receive tax benefits for the bargain sale or donation of the Deed. 26. Deed Correction. The Parties shall cooperate to correct mutually acknowledged errors in this Deed (and exhibits), including typographical, spelling, or clerical errors. The Parties shall make such corrections by written agreement. 27. Effective Date. The Effective Date of this Deed shall be the date and year first written above. 22 28. General Provisions. a. Controlling Law. The interpretation and performance of this Deed shall be governed by the laws of the State of Colorado. b. Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Deed shall be liberally construed in favor of the grant to effect the Purpose and the policy and purpose of C.R.S. § 38-30.5-101, et seq. If any provision in this Deed is found to be ambiguous, an interpretation consistent with the Purpose that would render the provision valid shall be favored over any interpretation that would render it invalid. c. Severability. If any provision of this Deed, or the application thereof to any person or circumstance, is found to be invalid, it shall be deemed severed from this Deed, and the balance of this Deed shall otherwise remain in full force and effect. d. Entire Agreement. The Recitals above are a material part of this Deed and are incorporated into this Deed. This Deed sets forth the entire agreement of the Parties with respect to the grant of a conservation easement over the Property and supersedes all prior discussions, negotiations, understandings, or agreements relating to the grant, all of which are merged in this Deed. e. Joint Obligation. The obligations imposed upon Grantor and Grantee in this Deed shall be joint and several if more than one entity or individual holds either interest at any given time. If there is more than one owner of the Property at any time, the obligations imposed by this Deed upon the owners shall be joint and several upon each of the owners of the Property. f. Non-Merger. A merger of this Deed and the fee title to the Property cannot occur by operation of law. No merger shall be deemed to have occurred hereunder or under any documents executed in the future affecting this Easement, unless the parties expressly state that they intend a merger of estates or interests to occur. g. Successors. The covenants, terms, conditions, and restrictions of this Deed shall be binding upon, and inure to the benefit of, the Parties and their respective personal representatives, heirs, successors, and assigns and shall continue as a servitude running in perpetuity with the Property. h. Termination of Rights and Obligations. Provided a transfer is permitted by this Deed, a Party's rights and obligations under the Deed terminate upon transfer of the Party's interest in the Deed or Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer. i. Captions. The captions in this Deed have been inserted solely for convenience of reference and are not a part of this Deed and shall have no effect upon construction or interpretation. 23 j. No Third-Party Beneficiaries. This Deed is entered into by and between Grantor and Grantee and is solely for the benefit of Grantor and Grantee and their respective successors and assigns for the purposes set forth in this Deed. The enforcement of the terms and conditions of this Deed and all rights of action relating to such enforcement, shall be strictly reserved to the parties. Nothing contained in this Deed shall give or allow any claim or right of action whatsoever by any other third person. It is the express intention of the Parties that any person or entity, other than the Parties, receiving services or benefits under this Deed shall be deemed an incidental beneficiary only. k. Amendment. If circumstances arise under which an amendment to or modification of this Deed or any of its exhibits would be appropriate, Grantor and Grantee may jointly amend this Deed so long as the amendment (i) is consistent with the Conservation Values and Purpose of this Deed (ii) does not affect the perpetual duration of the restrictions contained in this Deed, (iii) does not affect the qualifications of this Deed under any applicable laws, and (iv) complies with Grantee’s procedures and standards for amendments (as such procedures and standards may be amended from time to time). Any amendment must be in writing, signed by the Parties, and recorded in the records of the Clerk and Recorder of the county in which the Property is located. In order to preserve the Deed’s priority, the Grantee may obtain subordinations of any liens, mortgages, easements, or other encumbrances, and the Grantee may require a new title policy. For the purposes of this paragraph, the term “amendment” means any instrument that purports to alter in any way any provision of or exhibit to this Deed. Nothing in this Section 28.k shall be construed as requiring Grantee to agree to any particular proposed amendment. l. Change of Conditions or Circumstances. A change in the potential economic value of any use that is prohibited by or inconsistent with this Deed, or a change in any current or future uses of neighboring properties, shall not constitute a change in conditions or circumstances that make it impossible or impractical for continued use of the Property, or any portion thereof, for conservation purposes and shall not constitute grounds for terminating the Deed in whole or in part. In conveying this Deed, the Parties have considered the possibility that uses prohibited or restricted by the terms of this Deed may become more economically valuable than permitted uses, and that neighboring or nearby properties may in the future be put entirely to such prohibited or restricted uses. It is the intent of Grantor and Grantee that any such changes shall not be deemed to be circumstances justifying the termination or extinguishment of this Deed, in whole or in part. In addition, the inability of Grantor, or Grantor’s heirs, successors, or assigns, to conduct or implement any or all of the uses permitted under the terms of this Deed, or the unprofitability of doing so, shall not impair the validity of this Deed or be considered grounds for its termination or extinguishment, in whole or in part. m. Authority to Execute. Each Party represents to the other that such Party has full power and authority to execute, deliver, and perform this Deed, that the individual executing this Deed on behalf of each Party is fully empowered and authorized to do so, and that this Deed constitutes a valid and legally binding obligation of each Party enforceable against each Party in accordance with its terms. 24 n. Obligations Subject to Annual Appropriation. Any obligations of the Grantee under this Deed for fiscal years after the year of this Deed are subject to annual appropriation by Grantee’s governing body, in its sole discretion, of funds sufficient and intended for such purposes. o. Good Faith Negotiation/Mediation. Where this Deed requires the consent of either party, such consent shall not be unreasonably withheld, conditioned, delayed or denied. Where this Deed specifies that a decision requires the mutual agreement of the parties, the parties shall be obligated to make best efforts to negotiate in good faith to reach mutual agreement consistent with the Conservation Values and purposes of the Easement. In the event that such efforts by the parties fail to result in mutual agreement through negotiation, the parties agree to attempt to resolve their dispute through mediation. Either party may commence the mediation process by providing the other party with written notice setting forth the subject of the dispute, and the solution requested. Within ten (10) days after the receipt of the notice, the other party shall deliver a written response to the initiating party’s notice. The parties agree to meet with a mutually acceptable mediator to attempt to resolve the dispute. The initial mediation session shall be held within thirty (30) days after the initial notice, unless the selected mediator cannot accommodate the parties within that time. If the parties cannot agree upon a mediator, the Grantee will provide the Grantor with a list of at least three professional mediation organizations in the Fort Collins/Denver area that are not affiliated with the City of Fort Collins. The Grantor will select an organization from the list within ten (10) days of receipt of the list, and the selected organization will be asked to choose a mediator for the parties. The parties agree to share equally the costs and expenses of the mediation, which shall not include the expenses incurred by each party for its own legal representation in connection with the mediation. The provisions of this subparagraph may be enforced by any court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including reasonable attorneys’ fees and other legal costs, to be paid by the party against whom enforcement is ordered. p. No Waiver of Governmental Immunity. Anything else in this Deed to the contrary notwithstanding, no term or condition of this Deed shall be construed or interpreted as a waiver, either express or implied, of any of the immunities, rights, benefits or protection of the Colorado Governmental Immunity Act, C.R.S. §24-10-101, et seq., as amended or as may be amended in the future (including, without limitation, any amendments to such statute, or under any similar statute which is subsequently enacted) (“CGIA”), subject to any applicable provisions of the Colorado Constitution and applicable laws. The Parties acknowledge that liability for claims for injury to persons or property arising out of the negligence of a government entity, its members, officials, agents and employees may be controlled and/or limited by the provisions of the CGIA. The Parties agree that no provision of this Deed shall be construed in such a manner as to reduce the extent to which the CGIA limits the liability of any governmental party, its members, officers, agents and employees. 25 TO HAVE AND TO HOLD unto Grantee, its successors, and assigns forever. IN WITNESS WHEREOF, Grantor and Grantee have executed this Deed of Conservation Easement as of the Effective Date. GRANTOR: Glen T. Hazelhurst Margaret E. Hazelhurst STATE OF COLORADO ) ) ss COUNTY OF ____________ ) The foregoing instrument was acknowledged before me this day of ____________, 2019, by Glen T. Hazelhurst and Margaret E. Hazelhurst. Witness my hand and official seal. My Commission expires: _______________________________ Notary Public 26 GRANTEE: CITY OF FORT COLLINS a Colorado municipal corporation By:____________________________ , Mayor ATTEST: ________________________ City Clerk ________________________ Printed Name Approved as to Form: _______________________ Senior Assistant City Attorney ________________________ Printed Name STATE OF COLORADO ) ss. COUNTY OF LARIMER The foregoing instrument was acknowledged before me this _____ day of __________, 2019, by _________________as Mayor of the City of Fort Collins. Witness my hand and official seal My commission expires: ______________________________ Notary Public 27 [Exhibits A and B to come following Minor Land Division] Draft 7/16/19 Updated 1/2016 SECOND AMENDED AND RESTATED DEED OF CONSERVATION EASEMENT AND ASSIGNMENT HAZELHURST PROPERTY – 40 ACRE PARCEL THIS SECOND AMENDED AND RESTATED DEED OF CONSERVATION EASEMENT AND ASSIGNMENT (the “Second Amended Conservation Easement” or “Deed”) is made this ____ day of ___________ 2019 (“Effective Date”), by CITY OF FORT COLLINS, COLORADO, a municipal corporation, having its address at 300 Laporte Avenue, Fort Collins, CO 80521 (“Grantor”), to BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF LARIMER, STATE OF COLORADO (the “Grantee”), having its address at 200 W Oak Street, Fort Collins, CO 80521. (Grantor and Grantee may be individually referred to as a “Party” and collectively referred to as “Parties.”) The following exhibits are attached and incorporated: Exhibit A - Legal Description of Property Exhibit B - Map of Property Exhibit C - Baseline Acknowledgement Exhibit D - Encumbrances RECITALS A. Grantor is the sole owner in fee simple of approximately 40 acres of real property located in Larimer County, Colorado, encumbered by a conservation easement, more particularly described in Exhibit A and generally depicted on Exhibit B (the “Property”). B. The Property is encumbered by a Deed of Conservation Easement granted by Glen T. Hazelhurst and Margaret E. Hazelhurst (“Hazelhurst”) to Grantor recorded on October 31, 2005 at Reception No. 20050092426 in the records of Larimer County, Colorado Clerk and Recorder, as amended by a First Amended and Restated Deed of Conservation Easement dated ______, 2019 and recorded on _______, 2019 at Reception No. _______________ in the records of the Larimer County, Colorado Clerk and Recorder (the “First Amended Conservation Easement”). C. The First Amended Easement encumbers both the Property and an adjacent 5 acre parcel owned by Hazelhurst (“Parcel A”), and permits both subdivision of the Property from Parcel A, and further amendment of the First Amended Easement to create two separate documents should the Property and Parcel A be conveyed into separate ownership. D. Grantor purchased the Property from Hazelhurst and wishes to assign its interest in the Easement on the Property to Grantee, and Grantee wishes to assume ownership of the Easement from Grantor. The Parties also wish to restate, amend, supersede and replace the First Amended Conservation Easement and enter into a new conservation EXHIBIT B-2 2 easement with respect to the Property in order to facilitate management of the Easement on the Property separately from Parcel A. E. The Property possesses relatively natural habitat, scenic, open space, educational, and/or recreational values (collectively, “Conservation Values”) of great importance to Grantor, the people of Fort Collins and the surrounding Larimer County region and the people of the State of Colorado. In particular, the Property contains the following characteristics, which are also included within the definition of Conservation Values: i. Relatively Natural Habitat § 1.170A-14(d)(3). The Property's ecological values include a native biotic community of foothills grasslands that provide food, shelter, and migration corridors for several wildlife species, including, but not limited to, coyotes, foxes, mule deer, mountain bluebirds, golden eagles and red- tailed hawks. The grassland community present on the Property includes a globally rare plant community. The Property sustains a variety of bird species, including, but not limited to, horned larks, western meadowlarks, lark sparrows and grasshopper sparrows. Finally, the protection of the property contributes to the ecological viability of the adjacent Coyote Ridge Natural Area. ii. Open Space§ 1.170A-14(d)(4). The Property qualifies as open space because it will be preserved for the scenic enjoyment of the general public and will yield a significant public benefit. More specifically, preservation of the Property adds to the scenic character of the local rural landscape in which it lies because a large portion of the Property is visible to the general public from South Taft Hill Road, a paved, well- traveled road, which is actively utilized by residents of Fort Collins, Larimer County, and the State of Colorado. The Property is in the foreground of a view of the foothills of the Rocky Mountains from South Taft Hill Road, possesses aesthetic value as open space within the Fort Collins-Loveland Corridor, and helps provide a buffer of undeveloped land where there is a foreseeable trend of development in the vicinity of the Property in the near future, due primarily to the proximity of the Cities of Fort Collins and Loveland, which City Limits lie approximately one and one-half miles northeast and three miles southeast of the Property, respectively. The Property is adjacent to the Coyote Ridge Natural Area owned and managed by the City of Fort Collins. This public land includes a trail into the foothills directly west of the Property. As a result, much of the Property is highly visible from this public trail. Because of the immediate proximity to public open space, the Property provides a visual buffer and continuation of the open space already present to the west. There is a strong likelihood that development of the Property would lead to or contribute to degradation 3 of the scenic and natural character of the area. Preservation of the Property will add to the scenic character of the local landscape in which it lies, and will continue to provide an opportunity for the general public to appreciate the Property's scenic values. In particular, preservation of the open, undeveloped nature of the near ridgetop will preserve important scenic qualities of the Property. It should also be noted that the terms of the Conservation Easement do not permit a degree of intrusion or future development that would interfere with the essential scenic quality of the land. As such, preservation of the Property will continue to provide an opportunity for the general public to appreciate its scenic values. iii. Potential future public access for outdoor education and appropriate non- motorized trail recreation including hiking, wildlife watching, horseback riding, and mountain biking. iv. Conservation of this Property is consistent with the following federal, state, and local governmental policies: a) C.R.S. § 33-1-101, et seq., provides in relevant part that "it is the declared 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." b) C.R.S. § 33-2-101 to 33-2-106, which provide that “it is the policy of this state to manage all nongame wildlife, recognizing the private property rights of individual owners, for human enjoyment and welfare, for scientific purposes, and to ensure their perpetuation as members of ecosystems; that species or subspecies of wildlife indigenous to this state which may be found to be endangered or threatened within the state should be accorded protection in order to maintain and enhance their numbers to the extent possible; that this state should assist in the protection of species or subspecies of wildlife which are deemed to be endangered or threatened elsewhere.” c) C.R.S. § 33-10-101 to 33-10-114, which provide that “it is the policy of the State of Colorado that the natural, scenic, scientific, and outdoor recreation areas of this state are to be protected, preserved, enhanced, and managed for the use, benefit, and enjoyment of the people of this state and visitors of this state.” d) C.R.S. § 38-30.5-101, et seq., provides for the establishment of conservation easements to maintain land "in a natural, scenic, or open condition, or for wildlife habitat, or for agricultural, horticultural, wetlands, recreational, forest, or other use or condition consistent with the protection of open land, environmental quality or life-sustaining ecological diversity, or appropriate to the conservation and preservation 4 of buildings, sites, or structures having historical, architectural, or cultural interest or value." e) Fort Collins Natural Areas Master Plan (2014) states that “the mission of the Natural Areas Department is to conserve and enhance lands with natural resource, agricultural, and scenic values, while providing meaningful education and appropriate recreation opportunities” and establishes the conservation focus areas including the Foothills Corridor and Core Natural Areas which encompass the Property. F. Grantor intends that the Conservation Values be preserved and protected in perpetuity, and that the Deed prohibit any uses that would materially adversely affect the Conservation Values or that otherwise would be inconsistent with the Purpose (defined below). The Parties acknowledge and agree that uses expressly permitted by this Deed and Grantor’s current land use patterns on the Property, including without limitation those relating to grazing existing on the Effective Date (as defined in Section 27, below), do not materially adversely affect the Conservation Values and are consistent with the Purpose. G. By granting this Deed, Grantor further intends to (i) create a conservation easement interest that binds Grantor as the owner of the Property and also binds future owners of the Property; and (ii) convey to Grantee the right to preserve and protect the Conservation Values in perpetuity. H. Grantee is a political subdivision of the State of Colorado, and a “qualified organization” under I.R.C. § 170(h) and Treas. Reg. § 1.170A-14(c). The mission of Grantee’s Natural Resources Department is to conserve and enhance lands with natural resource, agricultural, and scenic values, while providing meaningful education and appropriate recreation opportunities. I. Grantee is also a governmental entity as required under C.R.S. § 38-30.5-101, et seq., which provides for conservation easements to maintain land and water in a natural, scenic or open condition, for wildlife habitat, or for agricultural and other uses or conditions consistent with the protection of open land in Colorado. J. Grantee is certified as license number CE0035 by the State of Colorado’s Division of Real Estate pursuant to C.R.S. § 12-61-724 and 4 C.C.R. 725-4, Chapter 2, to hold conservation easements for which a tax credit is claimed. K. Grantee agrees by accepting this Deed to preserve and protect in perpetuity the Conservation Values for the benefit of this and future generations. NOW, THEREFORE, pursuant to the laws of the State of Colorado, and in particular C.R.S. § 38-30.5-101, et seq., and in consideration of the recitals set forth above, and the mutual covenants, terms, conditions, and restrictions contained in this Deed, and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, Grantor voluntarily assigns, grants and conveys to Grantee, and Grantee voluntarily assumes and accepts, a conservation easement in gross 5 in perpetuity over the Property for the Purpose set forth below and of the nature and character and to the extent set forth in this Deed. This Deed entirely amends, restates and replaces the First Amended Conservation Easement with respect to the Property. 1. Purpose. The purpose of this Deed is to ensure that Grantor preserves and protects in perpetuity the Conservation Values as they exist upon the Effective Date and as they may evolve in the future, in accordance with I.R.C. § 170(h), Treas. Reg. § 1.170A-14 and C.R.S. § 38-30.5-101 et seq. (“Purpose”). To effectuate the Purpose, Grantor and Grantee agree: (i) to allow those uses of the Property that are expressly permitted by this Deed, subject to any limitations or restrictions stated in this Deed, and those uses of the Property that do not materially adversely affect the Conservation Values; and (ii) to prevent any use of the Property that is expressly prohibited by this Deed or will materially adversely affect the Conservation Values. Notwithstanding the foregoing, nothing in this Deed is intended to compel a specific use of the Property, such as agriculture, other than the preservation and protection of the Conservation Values. 2. Baseline Documentation Report. The Parties acknowledge that a written report dated September 30, 2005 was prepared by LREP, Inc., reviewed and approved, which documents the Property’s original condition (the “Baseline Report”). Either or both parties may update the Baseline Report at any time. Both parties agree to provide a copy of the new report to the other. The Baseline Report contains a natural resources inventory of the Property and also documents existing improvements on and current uses of the Property. A copy of the Baseline Report shall be kept on file with each Party and is by this reference made a part of this Deed. The Parties acknowledge that the Baseline Report is intended to establish and accurately represent the condition of the Property as of the Effective Date, and the Parties have acknowledged the same in a signed statement, a copy of which is attached as Exhibit C. The Parties will use the Baseline Report to assure that any future changes to the Property are consistent with the Purpose. However, the Parties agree that the existence of the Baseline Report shall in no way limit the Parties’ ability to use other pertinent information in resolving any controversy that may arise with respect to the condition of the Property as of the Effective Date. 3. Rights of Grantee. To accomplish the Purpose, in addition to the rights of the Grantee described in C.R.S. § 38-30.5-101 et seq., and the rights of Grantee described elsewhere in this Deed, the Deed conveys the following rights to Grantee: a. Right to Protect the Conservation Values. To preserve and protect the Conservation Values in perpetuity by administering, managing and enforcing the terms of this Deed; b. Right to Access the Property. To enter upon the Property at reasonable times to monitor Grantor’s compliance with and, if necessary, to enforce the terms of this Deed. Such entry shall be made upon prior reasonable notice to Grantor, except in the event Grantee reasonably determines that immediate entry upon the Property is necessary to prevent or mitigate a violation of this Deed. In the case where Grantee has determined that immediate entry is necessary, a reasonable attempt will be made to notify Grantor 6 prior to such entry. Grantee shall not unreasonably interfere with Grantor’s use and quiet enjoyment of the Property when exercising any such rights; c. Right to Prevent Inconsistent Activities and Require Restoration of Disturbed Areas. To prevent any activity on or use of the Property that is inconsistent with the Purpose or the express terms of this Deed and to require the restoration of such areas or features of the Property that may be damaged by any inconsistent use; and d. Right of Review. To require Grantor to consult with Grantee regarding the negotiations of any and all agreements between Grantor and third parties that may impact or disturb any portion of the surface of the Property, including but not limited to easement agreements, utility easements, right of way agreements, surface use agreements, and lease agreements (other than those specifically related to the agricultural and recreational operations of the Property), and to have the right to approve any such agreement prior to such agreement being executed. Within 60 days of consulting with Grantor in writing, Grantee shall provide Grantor with a decision or explain to Grantor why Grantee reasonably requires no more than an additional 30 days to reach a decision. Grantee’s approval shall not be unreasonably withheld, but nothing in this Deed is intended to require Grantee to approve any action or agreement that is inconsistent with the terms of this Deed. 4. Reserved Rights. Subject to the terms of the Deed, Grantor reserves to Grantor, and to Grantor’s personal representatives, heirs, successors, and assigns, all rights accruing from Grantor’s ownership of the Property, including (i) the right to engage in or permit or invite others to engage in all uses of the Property that are expressly permitted by this Deed, subject to any limitations or restrictions stated in this Deed, and those uses of the Property that do not materially adversely affect the Conservation Values; and (ii) to retain the economic viability of the Property and retain income derived from the Property from all sources, unless otherwise provided in this Deed, that are consistent with the terms of this Deed. Grantor may not, however, exercise these retained rights in a manner that is expressly prohibited by this Deed or that materially adversely affects the Conservation Values. Without limiting the generality of the foregoing, Grantor reserves the following specific rights: a. Right to Convey. Grantor may sell, give, lease, bequeath, devise, mortgage, or otherwise encumber or convey the Property, subject to the following: (i) any lease, deed, or other conveyance or encumbrance is subject to this Deed, and any such document shall specifically incorporate the terms and conditions of this Deed by reference to this Deed; (ii) any lease or deed or other conveyance document shall specifically state which reserved rights have been exercised, if at all, and which reserved rights are specifically allocated to the new owner or lessee; and (iii) notice of any proposed conveyance or encumbrance as set forth in this Section 4.a shall be subject to the provisions of Section 19 of this Deed. b. Subdivision. Any division or subdivision of title to the Property, whether by legal or physical process, into two or more parcels of land or partial or separate interests (including but not limited to condominium interests or the partition of undivided 7 interests) is prohibited, other than conveyances to public entities for public roads or other public improvements consistent with this Deed. Nothing in this subparagraph shall be construed to prohibit ownership of the Property by an entity consisting of more than one member. c. Resource Management. To accomplish the preservation and protection of the Conservation Values in perpetuity, Grantor shall operate, manage and maintain the Property in a manner that promotes the continued viability of the natural resources on the Property while maintaining any permissible productive uses of the Property, subject to the provisions of Section 6 of this Deed. Specifically, Grantor agrees to conduct the activities listed below in a manner consistent with the Purpose. Notwithstanding the foregoing, Grantor and Grantee recognize that changes in economic conditions, in agricultural technologies, in accepted farm, ranch and forest management practices, and in the situation of Grantor may result in an evolution of agricultural, silvicultural, and other uses of the Property, and such uses are permitted if they are consistent with the Purpose. (1) Habitat Management. Grantor may conduct any activities to create, maintain, restore, or enhance wildlife habitat and native biological communities on the Property, provided that such activities do not have more than a limited, short-term adverse effect on the Conservation Values. (i) Weed/Pest Management. Management of land to control erosion, growth of weeds and brush, rodents, pests, insects and pathogens, fire danger and other threats is permitted consistent with applicable laws and regulations and in keeping with maintenance of the Conservation Values of the Property, and in accordance with the Land Management Plan described in Section 6 below. The Grantor agrees to manage noxious weeds in accordance with the requirements of Larimer County, the State of Colorado and other applicable agencies. (ii) Maintenance/Restoration. Maintenance, stabilization, replacement, or restoration of existing croplands, springs, ditches and pastureland, are permitted. Wetland pond restoration and creation are permitted if and to the extent consistent with the Purpose and the terms of this Deed. (iii) Prescribed Fire. Igniting outdoor prescribed fires for agricultural or ecological purposes shall be allowed on the Property, provided that such activity is conducted in accordance with accepted prescribed burn practices, all applicable laws or regulations, and the Land Management Plan described in Section 6 below. 8 (2) Agriculture. Grantor reserves the right to use the Property for grazing livestock. Grantor shall conduct all agricultural activities using stewardship and management methods that preserve the natural resources upon which agriculture is based. Long-term stewardship and management goals include preserving soil productivity, maintaining natural stream channels, preventing soil erosion, minimizing invasive species, avoiding unsustainable livestock grazing practices, and minimizing loss of vegetative cover. (i) Grazing. Livestock grazing is permitted in accordance with sound stewardship and management practices, and shall be managed so that the overall condition of the Property is preserved at its baseline condition and in no event in less than “fair” condition (as defined by an applicable U.S. Department of Agriculture - Natural Resources Conservation Service (NRCS) Technical Guide). For the purposes of this Deed “livestock” shall mean cattle, horses, sheep, goats, llamas, alpaca, and bison. The raising of other livestock and/or game animals shall not be permitted unless specifically approved by the Grantee and described in the Land Management Plan. The Grantor shall comply with and have responsibility for compliance of the Property with the Colorado Noxious Weed Act and any other governmental noxious weed control regulations. (ii) Other Agricultural Uses. Gardening, beekeeping, and an orchard, all solely for consumption by the onsite residents, is allowed within in an area less than one acre in size. (3) Timber Management. Trees may be cut to control insects and disease, to control invasive non-native species, to prevent personal injury and property damage, to promote forest health, and for fire mitigation purposes including limited and localized tree and vegetation thinning and the creation of defensible space for permitted improvements. Collecting of firewood from dead or downed trees, or the use of trees cut as part of forest health management for firewood is permitted. In addition, trimming brush and trees to create a vehicular throughway to accomplish land management is permitted. Any large-scale fire mitigation activities or commercial timber harvesting on the Property shall be conducted on a sustainable yield basis and in substantial accordance with a forest management plan prepared by a competent professional forester. Any large- scale fire mitigation activities or timber harvesting shall be conducted in a manner that is consistent with the Purpose. A copy of the forest management plan shall be approved by Grantee prior to any large-scale fire mitigation activities or commercial timber harvesting. 9 d. Recreational Activities. Grantor reserves the right to engage in and permit the public to engage in non-commercial, non-motorized passive recreational activities, such as horseback riding, hiking, cross-country skiing, snowshoeing, and other similar low-impact recreational uses on the Property. Construction of recreational trails and trailhead for public use on the Property is permitted in accordance with 4.f(3) of this Deed. e. Hunting. No hunting, shooting, or trapping of any animals shall be permitted on the Property with the following exceptions: (1) live-trapping of prairie dogs for relocation pursuant to Section 4.l. herein; (2) trapping of small mammals for rodent control within the Building Envelope; (3) live-trapping for research purposes. (4) for protection of human health and safety and protection of the conservation values of the property, pursuant to Section 4.l. herein. No public, commercial or recreational use of the Property for hunting, shooting or trapping of any animals, is allowed. f. Improvements. (1) Residential and Non-Residential Improvements. No residential structures exist on the Property and no new residential structures are permitted. Non- Residential Improvements, defined below, existing as of the Effective Date are permitted, and the Grantor may maintain, repair, replace and reasonably enlarge such improvements in their current locations without Grantee’s approval. Grantor reserves the right to construct or place additional Non-Residential Improvements, and shall provide prior notice of such construction to Grantee in accordance with Section 7 of this Deed. Any new Non- Residential Improvement requiring a building permit or exceeding 800 square feet in total floor area and not expressly provided for in the Land Management Plan described in Section 6 below shall require prior written approval by the Grantee, in its reasonable discretion. Once constructed, the Grantor may maintain, repair, replace and reasonably enlarge such new improvements in their initially constructed locations without Grantee’s approval. (2) Building Envelope. Grantor and Grantee agree to mutually work together in the future to designate a building envelope (“Building Envelope”) of no more than four (4) acres on the Property. New Non-Residential Improvements may be built within the Building Envelope subject to the following limitations: (i) Improvements will be grouped together to the extent practicable (Ex: Vault restrooms, storage building, kiosk and parking lot in one general location.) (ii) Maximum square footage of a structure or building shall not exceed 1,000 square feet. 10 (iii) Maximum height of any structure shall be 15 feet. (3) “Non-Residential Improvements” shall mean all covered or uncovered recreational, agricultural and other improvements that are not intended for human habitation, including but not limited to well houses, outhouses, gazebos, picnic areas, trailhead parking areas (including vault toilets, trash receptacles, shelters, and kiosks), loafing sheds, corrals, hayracks, cisterns, stock tanks, stock ponds, troughs, fenced hay stacks, livestock feeding stations, hunting blinds, and wildlife viewing platforms. Notwithstanding the foregoing, trail markers, interpretive signs, information kiosks, site signs, fences (subject to the terms of Section 4.f of this Deed), sprinklers, water lines, water wells and ditches may be constructed outside of the Building Envelope. (4) Setbacks/Requirements for Improvements. In no case shall any structure be built within one hundred (100) feet of any stream, spring, or improvement, as identified in the Baseline Documentation or as may subsequently develop or be determined to exist on the Property, with the exception of water facilities described in paragraph 4.j below. Except for structures permitted within the Building Envelope, as shown on Exhibit B, no structure shall exceed twenty- five (25) feet in height, as measured from the average elevation of the finished grade to the highest point on a structure, unless approved by the Grantee. All development and construction must comply with local, state, and federal requirements. g. Roads and Trails. Maintenance of existing Roads and Trails is permitted. “Roads” shall mean any road that is graded, improved or maintained, including seasonal unimproved roads and two-track roads. “Trails” shall mean any unimproved or improved path, or paved or unpaved trail constructed or established by human use, but shall not include game trails established and used by wildlife only. Prior to the construction or establishment of any Road or Trail, Grantor shall provide notice to Grantee in accordance with Section 7 of this Deed. (1) Grantor shall not construct or establish Roads except those existing Roads depicted on Exhibit B, an access road in an easement across Parcel B as permitted in paragraph 4.b. above, or such other Roads as Grantee determines are consistent with the Purpose. Grantor shall not construct or establish any Road wider than necessary to provide access for all permitted uses or to meet local codes for width of access to improvements permitted by this Deed. Grantor shall not pave or otherwise surface a Road with any impervious surface, except if Grantee determines the paving of the Road is consistent with the Purpose. (2) Grantor shall not construct or establish any new Trail on the Property unless Grantee determines a new Trail is consistent with the Purpose. Grantor may construct approved Trails, and trail head access roads and parking for appropriate, public trail recreation including hiking, wildlife watching, horseback riding, and mountain biking. However, trailhead parking may not be constructed on the Property before 2024. Trail 11 recreation shall be non-motorized except as required for compliance with the Americans with Disabilities Act or other applicable laws. h. Fences. Existing fences may be maintained, repaired and replaced, and new fences may be built anywhere on the Property. The location and design of any fencing shall facilitate and be compatible with the movement of wildlife across the Property and otherwise consistent with the Purpose and in accordance with Section 7 of this deed. i. Water Facilities. Maintenance, development and construction of water facilities such as water wells, livestock watering wells, windmills, springs, water storage tanks, hydrants, pumps and/or well houses and similar minor agricultural infrastructure that are solely for use on the Property in conjunction with those activities on the Property permitted by this Deed, including providing drinking water for users and livestock on the Property, for use by the Grantor, Grantor’s lessees and/or invitees, are permitted. Any facilities pursuant to this paragraph shall be sited and constructed or placed so as not to substantially diminish or impair the Conservation Values of the Property and may be considered exempt from the setback requirement described in Section 4.f.(4). above. j. Utility Improvements. Any energy generation or transmission infrastructure and other utility improvements on the Property that already exist on the Property pursuant to an easement or other instrument recorded on or prior to the Effective Date, or later approved by Grantor after notice to Grantee in accordance with Section 7 of this Deed, may be repaired or replaced with an improvement of similar size and type at their current locations on the Property without further permission from Grantee. Utility improvements include but are not limited to: (i) natural gas distribution pipelines, electric power poles, transformers, and lines; (ii) telephone and communications towers, poles, and lines; (iii) water wells, domestic water storage and delivery systems; and (v) renewable energy generation systems including but not limited to wind, solar, geothermal, or hydroelectric for use on the Property (“Utility Improvements”). Any new or expanded Utility Improvements must be consistent with the Purpose, and Grantor shall not enlarge or construct any additional Utility Improvements without Grantee’s approval. However, Grantor reserves the right to construct Utility Improvements solely to provide utility services to the improvements permitted by this Deed, provided that no Utility Improvement exceeds 35 feet in height. Utility Improvements shall be located underground to the extent practicable. (1) Additional Requirements. Prior to the enlargement or construction of any Utility Improvements on the Property, Grantor shall provide notice to Grantee in accordance with Section 7 of this Deed. Following the repair, replacement, enlargement or construction of any Utility Improvements, Grantor shall promptly restore any disturbed area to a condition consistent with the Purpose. (2) Alternative Energy. (i) Wind, solar, and hydroelectric generation facilities that are primarily for the generation of energy for use on the Property in conjunction with those 12 activities permitted by this Deed (collectively “Alternative Energy Generation Facilities”) may be constructed in accordance with this Section 4.j(2). Notwithstanding the foregoing, no approval of Grantee shall be required if the Alternative Energy Generation Facilities permitted by this Section 4.j(2) are located within a Building Envelope. Any other Alternative Energy Generation Facilities may only be constructed with the prior written approval of Grantee in Grantee’s sole discretion. Without limiting Grantee’s right to withhold such approval in its sole discretion, factors that Grantee may consider in determining whether to grant such approval shall include but not be limited to (a) whether the installation and siting would substantially diminish or impair the Conservation Values, (b) the physical impact of the proposed facility on the Conservation Values, (c) the feasibility of less impactful alternatives, and (d) such other factors as Grantee may determine are relevant to the decision. The construction of Alternative Energy Generation Facilities that are not for use primarily in conjunction with those activities permitted by this Deed are prohibited anywhere on the Property. Nothing in this Section 4.j(2) shall be construed as permitting the construction or establishment of a wind farm or commercial solar energy production facility. (ii) Any energy generated by Alternative Energy Generation Facilities constructed in accordance with this Section 4.j(2) that is incidentally in excess of Grantor’s consumption may be sold, conveyed, or credited to a provider of retail electric service to the extent permitted by Colorado law. (iii) In the event of technological changes or legal changes that make “expanded” Alternative Energy Generation Facilities more compatible with I.R.C. Section 170(h) or any applicable successor law, Grantee in its sole discretion may approve expanded Alternative Energy Generation Facilities that would not substantially diminish or impair the Conservation Values. For the purposes of this Section 4.j(2)(iii), the term “expanded” shall mean the development of Alternative Energy Generation Facilities to an extent that is greater than the level permitted by Sections 4.j(2)(i) and 4.j(2)(ii). l. Animal Control. Grantor shall be allowed to control any wildlife species that becomes a threat to the purposes of this easement or to human health and safety, by any appropriate means. Control of prairie dogs and other animals but shall comply with the requirements for the use of pesticides or otherwise related to the management of prairie dogs and other animals. Grantor shall consult with Grantee in advance of taking any action to control, eradicate, or relocate prairie dogs, and any such action shall be consistent with Grantee's requirements associated with the protection of the Conservation Values of the Property or the purposes of this Easement. In any event, when using pesticides to control animal species on the Property, Grantor shall use only EPA-approved pesticides in approved amounts properly applied to appropriate habitats. Grantee encourages establishment and retention of prairie dogs on the Property. Prairie dog visual barriers may be installed to confine the prairie dog colony to a portion of the Property. Planting of native trees, shrubs, and other native plants to enhance wildlife habitat in appropriate locations on the Property are encouraged, but will be permitted only with the consent of the Grantee. 13 5. Prohibited and Restricted Uses. Any activity on or use of the Property inconsistent with the Purpose is prohibited. Without limiting the generality of the foregoing, the following activities and uses are expressly prohibited or restricted as set forth below: a. Development Rights. To fulfill the Purpose, Grantor conveys to Grantee all development rights, except those expressly reserved by Grantor in this Deed, deriving from, based upon or attributable to the Property in any way, including but not limited to all present and future rights to divide the Property for the purpose of development into residential, commercial or industrial lots or units or to receive density or development credits for the same for use off of the Property (“Grantee’s Development Rights”). The Parties agree that Grantee’s Development Rights shall be held by Grantee in perpetuity in order to fulfill the Purpose, and to ensure that such rights are forever released, terminated and extinguished as to Grantor, and may not be used on or transferred off of the Property to any other property or used for the purpose of calculating density credits or permissible lot yield of the Property or any other property. b. Residential, Non-Residential and Minor Non-Residential Improvements. Grantor shall not construct or place any Residential Improvements, Non-Residential Improvements or Minor Non-Residential Improvements on the Property except in accordance with Section 4.f of this Deed. c. Recreational and Commercial Improvements. Except for the trails and related facilities permitted hereunder, Grantor shall not construct or place any new recreational improvement on the Property, including but not limited to athletic fields, golf courses or ranges, race tracks, airstrips, helicopter pads, or shooting ranges. Grantor shall not construct or place any new commercial improvement on the Property. d. Removal of Vegetation and Timber Harvesting. Except as otherwise set forth in this Deed, Grantor shall not remove any vegetation, including shrubs and trees, or harvest any timber from the Property except in accordance with Section 4.c(3). e. Mineral Extraction. As of the Effective Date, Grantor owns all of the coal, oil, gas, hydrocarbons, sand, soil, gravel, rock and other minerals of any kind or description (the “Minerals”) located on, under, or in the Property or otherwise associated with the Property. This Deed expressly prohibits the mining or extraction of Minerals using any surface mining method. Notwithstanding the foregoing, Grantor and Grantee may permit mineral extraction utilizing methods other than surface mining if the method of extraction has a limited, localized impact on the Property that is not irremediably destructive of the Conservation Values. However, Grantor and Grantee agree that the following provisions shall apply to any such proposed mineral extraction by Grantor or any third party, as applicable: (1) Soil, Sand, Gravel and Rock. Grantor may extract soil, sand, gravel or rock without further permission from Grantee so long as such extraction: (i) is solely for use on the Property for non-commercial purposes; (ii) is in conjunction with activities permitted in this Deed, such as graveling roads and creating stock ponds; (iii) is accomplished in a manner consistent with the preservation and protection of the 14 Conservation Values; (iv) does not result in more than one half-acre of the Property being disturbed by extraction at one time, and uses methods of mining that may have a limited and localized impact on the Property but are not irremediably destructive of the Conservation Values; and (v) is reclaimed within a reasonable time by refilling or some other reasonable reclamation method for all areas disturbed. This provision shall be interpreted in a manner consistent with I.R.C. § 170(h), as amended, and the Treasury Regulations adopted pursuant thereto. 11 (2) Oil and Gas. Grantor, or a third party permitted by Grantor, may explore for and extract oil and gas owned in full or in part by Grantor, provided Grantor ensures that such activities are conducted in a manner that does not constitute surface mining and complies with the following conditions: (i) The exploration for or extraction of oil, gas and other hydrocarbons is conducted in accordance with a plan (the “Oil and Gas Plan”), prepared at Grantor’s expense and approved in advance by Grantee. The Oil and Gas Plan shall describe: (a) the specific activities proposed; (b) the specific land area to be used for well pad(s), parking, staging, drilling, and any other activities necessary for the extraction of oil and gas, and the extent of the disturbance of such land area before and after reclamation; (c) the location of facilities, equipment, roadways, pipelines and any other infrastructure to be located on the Property; (d) the method of transport of oil or gas produced from the Property; (e) the method of disposal of water, mining byproducts and hazardous chemicals produced by or used in the exploration and development of the oil or gas; (f) the proposed operation restrictions to minimize impacts on the Conservation Values, including noise and dust mitigation and any timing restrictions necessary to minimize impacts to wildlife; (g) the reclamation measures necessary to minimize disturbance to and reclaim the surface of the Property, including restoring soils to the original contours and replanting and re-establishing native vegetation using specific seed mixes and processes to ensure successful re-vegetation of the Property, including and in addition to those measures required by law; and (h) remedies for damages to the Conservation Values. (ii) No tank batteries, refineries, secondary production facilities, compressors, gas processing plants, or other similar facilities may be located on the Property. (iii) Areas of surface disturbance shall be mitigated promptly in accordance with the Oil and Gas Plan. (iv) Travel for the purpose of oil or gas development shall be restricted to existing roads or to new roads approved in advance in writing by Grantee as part of the Oil and Gas Plan. 11 This paragraph is only appropriate where Grantor has reserved limited development and/or road construction rights. It should be deleted if there is no reserved development on the Property. 15 (v) Well facilities and pipelines shall either be placed underground, or screened, or concealed from view using existing topography, existing native vegetation, newly planted but native vegetation, and/or use of natural tone coloring. Pipelines shall be located along or under existing roadways to the maximum extent possible. (vi) Drilling equipment may be located above ground without concealment or screening, provided that such equipment shall be promptly removed after drilling is completed. (vii) Any soil or water contamination due to the exploration for or extraction of oil or gas must be promptly remediated at the expense of Grantor. (viii) Any water, mining byproducts or hazardous chemicals produced by or used in the exploration and development of the oil or gas shall not be stored or disposed of on the Property. (ix) Flaring to enhance oil production is prohibited; flaring for emergencies or operational necessity is permitted. (x) Grantee shall be released and, to the extent permitted by law, indemnified and held harmless from any liabilities, damages, or expenses resulting from any claims, demands, costs or judgments arising out of the exercise of any rights by Grantor, any lessees or other third parties relating to the exploration for or extraction of oil, gas or hydrocarbons. (3) Third-Party Mineral Extraction. If a third party owns all, or controls some, of the Minerals, and proposes to extract Minerals from the Property, Grantor shall immediately notify Grantee in writing of any proposal or contact from a third party to explore for or develop the Minerals on the Property. Grantor shall not enter into any lease, surface use agreement, no-surface occupancy agreement, or any other instrument related to Minerals associated with the Property (each, a “Mineral Document”), with a third party subsequent to the Effective Date without providing a copy of the same to Grantee prior to its execution by Grantor for Grantee’s review and approval. 12 Any Mineral Document shall require that Grantor provide notice to Grantee whenever notice is given to Grantor, require the consent of Grantee for any activity not specifically authorized by the instrument, and give Grantee the right, but not the obligation, to object, appeal and intervene in any action in which Grantor has such rights. Any Mineral Document must either (i) prohibit any access to the surface of the Property or (ii) must (a) limit the area(s) of disturbance to a specified area(s); (b) include provisions that ensure that the proposed activities have a limited, localized impact on the Property that is not irremediably destructive of the Conservation Values; and (c) contain a full description of the activities proposed, a description of the extent of disturbance, the location of facilities, equipment, roadways, pipelines and any other infrastructure, the 12 If there is an active oil and gas lease on the Property, you will need to consult with Grantee about drafting certain additional protections. 16 proposed operation restrictions to minimize impacts on the Conservation Values, reclamation measures including and in addition to those required by law, and remedies for damages to the Conservation Values. Any Mineral Document that only permits subsurface access to Minerals but prohibits any access to the surface of the Property shall also prohibit any disturbance to the subjacent and lateral support of the Property, and shall not allow any use that would materially adversely affect the Conservation Values. (4) This Section 5.e shall be interpreted in a manner consistent with I.R.C. § 170(h) and the Treasury Regulations adopted pursuant thereto. f. Trash. The dumping or accumulation of any kind of trash or refuse on the Property, including but not limited to household trash and hazardous chemicals, is prohibited. Limited dumping or accumulation of other agriculture-related trash and refuse produced on the Property is permitted, provided that such dumping does not substantially diminish or impair the Conservation Values and is confined within a total area less than one-quarter acre at any given time. This Section 5.f shall not be interpreted to prevent the storage of agricultural products and by-products on the Property in accordance with all applicable government laws and regulations. g. Motorized Vehicles. Motorized vehicles may be used only in conjunction with activities permitted by this Deed and in a manner that is consistent with the Purpose. Off-road vehicle courses for snowmobiles, all-terrain vehicles, motorcycles, or other motorized vehicles are prohibited. h. Commercial or Industrial Activity. (1) No industrial uses shall be allowed on the Property. Commercial uses are allowed, as long as they are conducted in a manner that is consistent with I.R.C. § 170(h) and the Purpose. Without limiting other potential commercial uses that meet the foregoing criteria, the following uses are allowed: (i) Breeding and grazing livestock, such as cattle, horses, sheep, and similar animals; (2) The foregoing descriptions of allowed commercial uses notwithstanding, commercial feed lots and other intensive growth livestock farms, such as dairy, swine, or poultry farms, are inconsistent with the Purpose and are prohibited. For purposes of this Deed, "commercial feed lot" is defined as a permanently constructed confined area or facility within which the Property is not grazed or cropped annually, and which is used and maintained for purposes of engaging in the commercial business of the reception and feeding of livestock. i. Signage or Billboards. No commercial signs, billboards, awnings, or advertisements shall be displayed or placed on the Property, except for appropriate and customary ranch or pasture identification signs, “for sale” or “for lease” signs alerting the public to the availability of the Property for purchase or lease, “no trespassing” signs, 17 interpretive, directional, waypoint signage, and signs informing the public of the status of ownership. Any such signs shall be located and designed in a manner consistent with the Purpose. 6. Land Management / Management Plan. Grantor and Grantee acknowledge that the preservation and protection of the Conservation Values as contemplated under this Deed require careful and thoughtful stewardship of the Property. To facilitate periodic communication between Grantor and Grantee about management issues that may impact the Conservation Values, the Property shall be operated and managed in accordance with a “Management Plan” jointly agreed upon by Grantor and Grantee on or before the Effective Date. The Parties shall review the Management Plan at least every five years and update it if either Party determines an update is necessary. 7. Grantor Notice and Grantee Approval. The purpose of requiring Grantor to notify Grantee prior to undertaking certain permitted activities is to afford Grantee an opportunity to ensure that the activities in question are designed and carried out in a manner consistent with the Purpose. Whenever notice is required, Grantor shall notify Grantee in writing within a reasonable period of time prior to the date Grantor intends to undertake the activity in question. The notice shall describe the nature, scope, design, location, timetable, and any other material aspect of the proposed activity in sufficient detail to permit Grantee to make an informed judgment as to its consistency with the Purpose. Where Grantee's approval is required, Grantor shall not undertake the requested activity until Grantor has received Grantee’s approval in writing. Grantee shall grant or withhold its approval in writing within the time frame described in Paragraph 3d above, following receipt of Grantor’s written request and sufficient supporting details as described above. Grantee's approval may be withheld only upon Grantee’s reasonable determination that the activity as proposed is not consistent with the Purpose or the express terms of this Deed, unless this Deed provides that approval for a particular request may be withheld in the sole discretion of the Grantee. 8. Enforcement. The Grantee shall have the right to prevent and correct or require correction of violations of the terms of this Deed and the purposes of the Easement. If Grantee finds what it believes is a violation of this Deed, Grantee shall immediately notify the Grantor in writing of the nature of the alleged violation. Upon receipt of this written notice, Grantor shall either: a. Restore the Property to its condition prior to the violation; or b. Provide a written explanation to Grantee of the reason why the alleged violation should be permitted, in which event the Parties agree to meet as soon as possible to resolve their differences. If a resolution cannot be achieved at the meeting, the Parties may meet with a mutually acceptable mediator to attempt to resolve the dispute. Grantor shall discontinue any activity that could increase or expand the alleged violation during the mediation process. If Grantor refuses to undertake mediation in a timely manner or should mediation fail to resolve the dispute, Grantee may, at its discretion, take appropriate legal action. Notwithstanding the foregoing, when Grantee, in its sole 18 discretion, determines there is an ongoing or imminent violation that could irreversibly diminish or impair the Conservation Values, Grantee may, at its sole discretion, take appropriate legal action without pursuing mediation, including but not limited to seeking an injunction to stop the alleged violation temporarily or permanently or to require the Grantor to restore the Property to its prior condition. 9. Costs of Enforcement. Grantor shall pay any costs incurred by Grantee in enforcing the terms of this Deed against Grantor, including without limitation costs and expenses of suit, attorney fees and any costs of restoration necessitated by Grantor’s violation of the terms of this Deed. If the deciding body determines that Grantor has prevailed in any such legal action, then each Party shall pay its own costs and attorney fees. However, if the deciding body determines that Grantee’s legal action was frivolous or groundless, Grantee shall pay the Grantor’s costs and attorney fees in defending the legal action. 10. No Waiver or Estoppel. Enforcement of the terms of this Deed shall be in the Grantee’s discretion. If the Grantee does not exercise, or delays the exercise of, its rights under this Deed in the event of a violation of any term, such inaction or delay shall not be deemed or construed to be a waiver by Grantee of such term or of any subsequent violation of the same or any other term of this Deed or of any of Grantee's rights under this Deed. Grantor waives any defense of laches, estoppel, or prescription, including the one-year statute of limitations for commencing an action to enforce the terms of a building restriction or to compel the removal of any building or improvement because of the violation of the same under C.R.S. § 38-41-119, et seq. 11. Acts Beyond Grantor’s Control. Nothing contained in this Deed shall be construed to entitle Grantee to bring any action against Grantor for any injury to or change in the Property resulting from causes beyond Grantor’s control, including without limitation fire, flood, storm, and earth movement, 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. Notwithstanding the foregoing, Grantor shall take reasonable efforts to prevent third parties from performing, and shall not knowingly allow third parties to perform, any act on or affecting the Property that is inconsistent with the Purpose. 12. Access. No right of access by the general public to any portion of the Property is conveyed by this Deed. 13. Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the Property, including weed control and eradication and maintaining adequate comprehensive general liability insurance coverage. Grantor shall keep the Property free of any liens arising out of any work performed for, materials furnished to, or obligations incurred by Grantor. 14. Taxes. Grantor shall pay before delinquency all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Property by competent 19 authority (collectively “Taxes”), including any Taxes imposed upon, or incurred as a result of, this Deed, and shall furnish Grantee with satisfactory evidence of payment upon request. 15. Liability. Each party is responsible for the consequences of its own negligence and that of its officers and employees. Nothing in this Deed shall be construed as giving rise to any right or ability in Grantee, nor shall Grantee have any right or ability, to exercise physical or managerial control over the day-to-day operations of the Property, or otherwise to become an operator with respect to the Property within the meaning of The Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, or any similar law or regulation. Nothing herein is intended as a waiver of the provisions of the Colorado Governmental Immunity Act, Section 24-10-101 et seq. C.R.S. 16. Real Property Interest. The conservation easement interest created by this Deed constitutes a real property interest immediately vested in Grantee. The Parties stipulate that this conservation easement interest (which includes the value of Grantee’s Development Rights) has a fair market value equal to Forty-seven and a half percent (47.5%) of the full unencumbered fair market value of the Property (the “Easement Value Percentage”). The values at the time of this Deed shall be those values used to calculate the deduction for federal income tax purposes allowable by reason of this grant, pursuant to I.R.C. § 170(h), whether or not Grantor claims any deduction for federal income tax purposes. The Easement Value Percentage shall remain constant. 17. Condemnation or Other Extinguishment. If this Deed is taken, in whole or in part, by exercise of the power of eminent domain (“Condemnation”), or if circumstances arise in the future that render the Purpose impossible or impractical to accomplish, this Deed can only be terminated, whether in whole or in part, by judicial proceedings in a court of competent jurisdiction. Each Party shall promptly notify the other Party in writing when it first learns of such circumstances. Grantee shall be entitled to full compensation for its interest in any portion of this Deed that is terminated as a result of Condemnation or other proceedings. Grantee’s proceeds shall be an amount at least equal to the Easement Value Percentage multiplied by the value of the unencumbered fee simple interest (excluding the value of any improvements) in the portion of the Property that will no longer be encumbered by this Deed as a result of Condemnation or termination. Grantor shall not voluntarily accept proceeds equal to less than the full fair market value of the affected Property unrestricted by this Deed without the approval of Grantee. Grantee shall use its proceeds in a manner consistent with the conservation purposes of this Deed. Grantee's remedies described in this Section 17 shall be cumulative and shall be in addition to any and all remedies now or hereafter existing at law or in equity, including the right to recover any damages for loss of Conservation Values as described in C.R.S. § 38-30.5-108. 18. Assignment. 20 a. This Deed is transferable, but Grantee may assign its rights and obligations under this Deed only to an organization that: (1) is a qualified organization at the time of transfer under I.R.C. § Section 170(h) as amended (or any successor provision then applicable) and the applicable regulations promulgated thereunder; (2) is authorized to acquire and hold conservation easements under Colorado law; (3) agrees in writing to assume the responsibilities imposed on Grantee by this Deed; and b. If Grantee desires to transfer this Deed to a qualified organization having similar purposes as Grantee but Grantor has refused to approve the transfer, Grantee may seek an order by a court with jurisdiction to transfer this Deed to another qualified organization having similar purposes that agrees to assume the responsibility imposed on Grantee by this Deed, provided that Grantor shall have adequate notice of and an opportunity to participate in the court proceeding leading to the court’s decision on the matter. c. Upon compliance with the applicable portions of this Section 18, the Parties shall record an instrument completing the assignment in the property records of the county or counties in which the Property is located. Assignment of the Deed shall not be construed as affecting the Deed’s perpetual duration and shall not affect the Deed’s priority against any intervening liens, mortgages, easements, or other encumbrances. 19. Subsequent Transfers. Grantor shall notify the Grantee in writing at least thirty (30) days in advance of the proposed conveyance of any interest in all or any portion of the Property, including any conveyance under threat of condemnation, and shall incorporate by reference the terms and conditions of this Deed in any deed or other legal instrument by which it divests itself of any interest in all or a portion of the Property, except conveyance of a leasehold interest that is no longer than one year in duration or an agricultural lease, that is otherwise consistent in all respects with the terms of this Deed. The failure of Grantor to perform any act required by this Section 19 shall not impair the validity of this Deed or limit its enforceability in any way. 20. Notices. Any notice, demand, request, consent, approval, or communication that either Party is required to give to the other in writing shall be either served personally or delivered by (a) certified mail, with return receipt requested; or (b) a commercial delivery service that provides proof of delivery, addressed as follows: To Grantor: City of Fort Collins Natural Areas Department c/o John Stokes, Natural Areas Director P.O. Box 580 21 Fort Collins, CO 80522 To Grantee: Larimer County or to such other address as either Party from time to time shall designate by written notice to the other. 21. Grantor’s Title Warranty. Grantor warrants that Grantor has good and sufficient title to the Property and Grantor has access to the Property for the purposes granted or permitted to Grantee in this Deed, and Grantor promises to defend the same against all claims whatsoever. Grantor’s warranty of title is further subject to the encumbrances set forth on Exhibit D, attached hereto and incorporated herein by this reference. 22. Subsequent Liens on the Property. No provisions of this Deed shall be construed as impairing the ability of Grantor to use this Property as collateral for subsequent borrowing, provided that any deed of trust, mortgage or lien arising from such a borrowing shall not encumber less than all of the Property, and shall be subordinate to this Deed for all purposes so that any such instrument expressly shall be deemed to have been recorded after this Deed and so that any foreclosure of such deed of trust, mortgage or lien shall not affect any provision of this Deed, including without limitation its perpetual nature, the payment of proceeds as described in Section 17 above, and the limitation of Section 5.e. 23. Recording. Grantee shall record this Deed in a timely fashion in the official records of each county or counties in which the Property is situated, and may re-record it at any time as may be required to preserve its rights in this Deed. 24. Environmental Attributes. Unless otherwise provided in this Deed, Grantor reserves all Environmental Attributes associated with the Property. “Environmental Attributes” shall mean any and all tax or other credits, benefits, renewable energy certificates, emissions reductions, offsets, and allowances (including but not limited to water, riparian, greenhouse gas, beneficial use, and renewable energy), generated from or attributable to the conservation, preservation and management of the Property in accordance with this Deed. Nothing in this Section 24 shall modify the restrictions imposed by this Deed or otherwise be inconsistent with the Purpose. 25. Tax Benefits. Grantor acknowledges that Grantor is responsible for obtaining legal and accounting counsel to advise Grantor regarding the applicability of federal or state tax benefits that might arise from the bargain sale (sale at less than fair market value) or donation of the Deed. Grantee makes no representation or warranty that Grantor will receive tax benefits for the bargain sale or donation of the Deed. 26. Deed Correction. The Parties shall cooperate to correct mutually acknowledged errors in this Deed (and exhibits), including typographical, spelling, or clerical errors. The Parties shall make such corrections by written agreement. 22 27. Effective Date. The Effective Date of this Deed shall be the date and year first written above. 28. General Provisions. a. Controlling Law. The interpretation and performance of this Deed shall be governed by the laws of the State of Colorado. b. Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Deed shall be liberally construed in favor of the grant to effect the Purpose and the policy and purpose of C.R.S. § 38-30.5-101, et seq. If any provision in this Deed is found to be ambiguous, an interpretation consistent with the Purpose that would render the provision valid shall be favored over any interpretation that would render it invalid. c. Severability. If any provision of this Deed, or the application thereof to any person or circumstance, is found to be invalid, it shall be deemed severed from this Deed, and the balance of this Deed shall otherwise remain in full force and effect. d. Entire Agreement. The Recitals above are a material part of this Deed and are incorporated into this Deed. This Deed sets forth the entire agreement of the Parties with respect to the grant of a conservation easement over the Property and supersedes all prior discussions, negotiations, understandings, or agreements relating to the grant, all of which are merged in this Deed. e. Joint Obligation. The obligations imposed upon Grantor and Grantee in this Deed shall be joint and several if more than one entity or individual holds either interest at any given time. If there is more than one owner of the Property at any time, the obligations imposed by this Deed upon the owners shall be joint and several upon each of the owners of the Property. f. Non-Merger. A merger of this Deed and the fee title to the Property cannot occur by operation of law. No merger shall be deemed to have occurred hereunder or under any documents executed in the future affecting this Easement, unless the parties expressly state that they intend a merger of estates or interests to occur. g. Successors. The covenants, terms, conditions, and restrictions of this Deed shall be binding upon, and inure to the benefit of, the Parties and their respective personal representatives, heirs, successors, and assigns and shall continue as a servitude running in perpetuity with the Property. h. Termination of Rights and Obligations. Provided a transfer is permitted by this Deed, a Party's rights and obligations under the Deed terminate upon transfer of the Party's interest in the Deed or Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer. 23 i. Captions. The captions in this Deed have been inserted solely for convenience of reference and are not a part of this Deed and shall have no effect upon construction or interpretation. j. No Third-Party Beneficiaries. This Deed is entered into by and between Grantor and Grantee and is solely for the benefit of Grantor and Grantee and their respective successors and assigns for the purposes set forth in this Deed. The enforcement of the terms and conditions of this Deed and all rights of action relating to such enforcement, shall be strictly reserved to the parties. Nothing contained in this Deed shall give or allow any claim or right of action whatsoever by any other third person. It is the express intention of the Parties that any person or entity, other than the Parties, receiving services or benefits under this Deed shall be deemed an incidental beneficiary only. k. Amendment. If circumstances arise under which an amendment to or modification of this Deed or any of its exhibits would be appropriate, Grantor and Grantee may jointly amend this Deed so long as the amendment (i) is consistent with the Conservation Values and Purpose of this Deed (ii) does not affect the perpetual duration of the restrictions contained in this Deed, (iii) does not affect the qualifications of this Deed under any applicable laws, and (iv) complies with Grantee’s procedures and standards for amendments (as such procedures and standards may be amended from time to time). Any amendment must be in writing, signed by the Parties, and recorded in the records of the Clerk and Recorder of the county in which the Property is located. In order to preserve the Deed’s priority, the Grantee may obtain subordinations of any liens, mortgages, easements, or other encumbrances, and the Grantee may require a new title policy. For the purposes of this paragraph, the term “amendment” means any instrument that purports to alter in any way any provision of or exhibit to this Deed. Nothing in this Section 28.k shall be construed as requiring Grantee to agree to any particular proposed amendment. l. Change of Conditions or Circumstances. A change in the potential economic value of any use that is prohibited by or inconsistent with this Deed, or a change in any current or future uses of neighboring properties, shall not constitute a change in conditions or circumstances that make it impossible or impractical for continued use of the Property, or any portion thereof, for conservation purposes and shall not constitute grounds for terminating the Deed in whole or in part. In conveying this Deed, the Parties have considered the possibility that uses prohibited or restricted by the terms of this Deed may become more economically valuable than permitted uses, and that neighboring or nearby properties may in the future be put entirely to such prohibited or restricted uses. It is the intent of Grantor and Grantee that any such changes shall not be deemed to be circumstances justifying the termination or extinguishment of this Deed, in whole or in part. In addition, the inability of Grantor, or Grantor’s heirs, successors, or assigns, to conduct or implement any or all of the uses permitted under the terms of this Deed, or the unprofitability of doing so, shall not impair the validity of this Deed or be considered grounds for its termination or extinguishment, in whole or in part. m. Authority to Execute. Each Party represents to the other that such Party has full power and authority to execute, deliver, and perform this Deed, that the 24 individual executing this Deed on behalf of each Party is fully empowered and authorized to do so, and that this Deed constitutes a valid and legally binding obligation of each Party enforceable against each Party in accordance with its terms. n. Obligations Subject to Annual Appropriation. Any obligations of either Party under this Deed for fiscal years after the year of this Deed are subject to annual appropriation by such Party’s governing body, in its sole discretion, of funds sufficient and intended for such purposes. o. Good Faith Negotiation/Mediation. Where this Deed requires the consent of either party, such consent shall not be unreasonably withheld, conditioned, delayed or denied. Where this Deed specifies that a decision requires the mutual agreement of the parties, the parties shall be obligated to make best efforts to negotiate in good faith to reach mutual agreement consistent with the Conservation Values and purposes of the Easement. In the event that such efforts by the parties fail to result in mutual agreement through negotiation, the parties agree to attempt to resolve their dispute through mediation. Either party may commence the mediation process by providing the other party with written notice setting forth the subject of the dispute, and the solution requested. Within ten (10) days after the receipt of the notice, the other party shall deliver a written response to the initiating party’s notice. The parties agree to meet with a mutually acceptable mediator to attempt to resolve the dispute. The initial mediation session shall be held within thirty (30) days after the initial notice, unless the selected mediator cannot accommodate the parties within that time. If the parties cannot agree upon a mediator, the Grantee will provide the Grantor with a list of at least three professional mediation organizations in the Fort Collins/Denver area that are not affiliated with the City of Fort Collins. The Grantor will select an organization from the list within ten (10) days of receipt of the list, and the selected organization will be asked to choose a mediator for the parties. The parties agree to share equally the costs and expenses of the mediation, which shall not include the expenses incurred by each party for its own legal representation in connection with the mediation. The provisions of this subparagraph may be enforced by any court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including reasonable attorneys’ fees and other legal costs, to be paid by the party against whom enforcement is ordered. p. No Waiver of Governmental Immunity. Anything else in this Deed to the contrary notwithstanding, no term or condition of this Deed shall be construed or interpreted as a waiver, either express or implied, of any of the immunities, rights, benefits or protection of the Colorado Governmental Immunity Act, C.R.S. §24-10-101, et seq., as amended or as may be amended in the future (including, without limitation, any amendments to such statute, or under any similar statute which is subsequently enacted) (“CGIA”), subject to any applicable provisions of the Colorado Constitution and applicable laws. The Parties acknowledge that liability for claims for injury to persons or property arising out of the negligence of a government entity, its members, officials, agents and employees may be controlled and/or limited by the provisions of the CGIA. The Parties agree that no provision of this Deed shall be construed in such a manner as to 25 reduce the extent to which the CGIA limits the liability of any governmental party, its members, officers, agents and employees. TO HAVE AND TO HOLD unto Grantee, its successors, and assigns forever. IN WITNESS WHEREOF, Grantor and Grantee have executed this Deed of Conservation Easement as of the Effective Date. GRANTOR: CITY OF FORT COLLINS a Colorado municipal corporation By:____________________________ Wade Troxell , Mayor ATTEST: ________________________ City Clerk ________________________ Printed Name Approved as to Form: _______________________ Senior Assistant City Attorney ________________________ Printed Name STATE OF COLORADO ) ss. COUNTY OF LARIMER The foregoing instrument was acknowledged before me this _____ day of __________, 2019, by Wade Troxell, as Mayor, of the City of Fort Collins. Witness my hand and official seal My commission expires: ______________________________ Notary Public 26 GRANTEE: LARIMER COUNTY By: STATE OF COLORADO ) ) ss COUNTY OF ____________ ) The foregoing instrument was acknowledged before me this day of ____________, 2018, by _____________________. Witness my hand and official seal. My Commission expires: _______________________________ Notary Public 27 [Exhibits A and B to come following Minor Land Division]