TC Resolution 18-06 Approving a Waiver and Release of Conservation Easement for Lot 90, Mountain Star SubdivisionRESOLUTION NO. 18-06
APPROVING A WAIVER AND RELEASE
OF CONSERVATION EASEMENT
FOR LOT 90, MOUNTAIN STAR SUBDIVISION
WHEREAS, the Avon Town Council has determined that the Conservation Easement
granted to the Town on the Mountain Star subdivision erroneously contained Lot 90, which was
platted for residential development; and,
WHEREAS, the Town Council finds that approval of the attached Waiver and Release of
Conservation Easement will promote the health, safety, prosperity, convenience and general
welfare of the Avon community by correcting an erroneous restriction on private property
intended for residential development.
NOW THEREFORE, the Avon Town Council, hereby RESOLVES to approve the Waiver
and Release of Conservation Easement attached hereto as Exhibit A and further authorizes the
Mayor and Mayor Pro -Tem to execute such Waiver and Release and to take such other action as
appropriate to effectuate the purpose of this Resolution.
ADOPTED January 23, 2018 by the AVON TOWN COUNCIL
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By: Attest: E A,
nie Fancher, Mayor Debbie Hoppe, Town 1 k'.
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Eagle County, CO 201801814
Regina O'Brien 02/01/2018
Pgs: 5 01:08:05 PM
REC: $33.00 DOC: $0.00
WAIVER AND RELEASE
OF CONSERVATION EASEMENT
THIS WAIVER AND RELEASE OF CONSERVATION EASEMENT ("Waiver") is
entered into on January 23, 2018 by and between the Town of Avon, a Colorado home rule
municipality ("Town') and Stephen D. Johnson ("Owner"),
WITNESSETH:
WHEREAS, Mountain Star Limited Liability Company, a Wyoming limited liability company
and Town previously entered into a Deed of Conservation Easement, dated February 25, 1994,
and recorded in the Office of the Eagle County Clerk and Recorder,. Colorado, at Reception
Number 532340 and then re-recorded at Reception Number 552874, ("1994 Conservation
Easemenfj which created certain restrictions on development within the property subject to the
1994 Conservation Easement; and,
WHEREAS, the 1994 Conservation Easement stated in Paragraph 3. Permitted Uses and
Practices, that the following uses are permitted under this easement, sub -paragraph e. "To
develop residential homesites and related utility lines, roads and associated structures within the
area identified as "development area" on Exhibit `B", provided, however, that Grantor shall first
mitigate the impact of the development on Harrington pe'nstemon habitat either by avoiding
impacts, collecting seeds and distributing them in appropriate habitat, and/or by relocating plants
potentially impacted into suitable habitat as approved by Grantee." and,
WHEREAS, the Town approved the Final Plat Mountain Star Filing No. 2, Town of Avon,
Eagle County, Colorado, as recorded in the Office of the Eagle County Clerk and Recorder,
Colorado on May 4, 1994, at Reception Number 535537, which created "Lot 90" as a residential
lot intended to be sold and developed for residential use in accordance with the Mountain Star
Planned Unit Development Plan, and which Lot 90 appears to be located in the area described in
Exhibit B of the 1994 Conservation Easement as "development area"; and,
WHEREAS, Town and Mountain Star Association, a Colorado non-profit corporation, as
successor in interest of Mountain Star Limited Liability Company with regard to the 1994
Conservation Easement, entered into a Deed of Conservation Easement dated January 12, 2010,
and recorded in the Office of the Eagle County Clerk and Recorder, Colorado, at Reception
Number 201019357 ("2010 Conservation Easement'); and,
WHEREAS, the 2010 Conservation Easement does not contain language similar to the language
in paragraph 3.c. of the 1994 Conservation Easement addressing residential development as a
permitted use; and
WHEREAS, Town agreed to terminate and extinguish the 1994 Conservation Easement in the
2010 Conservation Easement; and
WHEREAS, the Owner, as owner of Lot 90, did not sign the 2010 Conservation Easement; and,
17T*
GUARANTEE W WAwr
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'WHEREAS, the Town acknowledges that the intent of the 2010 Conservation Easement was not
to restrict residential development of Lot 90, but rather to exclude Tract T' and Tract AA from
the 1994 Conservation Easement; and,
WHEREAS, the Town and Owner desire to clarify any legal ambiguity concerning the
applicability, rights and restrictions of the Town and Owner concerning the 1994 Conservation
Easement and the 2010 Conservation Easement.
NOW THEREFORE, Town and Owner agree as follows:
I. Mutual Waiver and Release. Town agrees that any rights and/or restrictions of Town
concerning Lot 90, Mountain Star Filing No. 2, Town of Avon, Colorado, as set forth the
1994 Conservation Easement and 2010 Conservation Easement are hereby forever
waived and released. Owner agrees that any rights and/or restrictions of Owner arising
from either the 1994 Conservation Easement or 2010 Conservation Easement are hereby
forever waived and released. Owner and Town agree that the 1994 Conservation
Easement is terminated and extinguished and that the 2010 Conservation Easement shall
be interpreted and applied to exclude Lot 90 from the Easement Area as such term is
defined in the 2010 Conservation Easement and to exclude Owner as a party to the 2010
Conservation Easement and to otherwise exclude Lot 90 from any restrictions or
prohibitions set forth in the 2010 Conservation Easement.
2. Successors and Assigm. This Waiver shall apply to successors, assigns and heirs of
Town and Owner.
3. Legal Advice. Each party acknowledges that they have been advised to seek legal
advice.
4. Recordint?. This Waiver maybe recorded by either party in the Eagle .County Clerk and
Recorder's Office,
5. Counteraarts. This Waiver may be executed in counterparts, each of which shall be an
original but all of which when taken together shall constitute one instrument. Facsimile
or electronically transmitted signatures on this Waiver shall be accepted by the parties as
originals for all purposes.
[signature pages fbIkw]
201801814
Town of Avon, Colorado
By: rl r
Virginia Ego
g r, Manag
Attest:
Debbie Hoppe,
STATE OF COLORADO
COUNTY OF EAGLE
WOZA-MAIT9MIMI
Date
Clerk
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form:
Eric Hei Attorney
The foregoing instrument was acknowledged before me this 14 day of
2018 by Virginia Egger as Manager and Debbie Hoppe as Town
Clerk of the T -vvn of Avon, Colorado.
My commission expires: V h2, IZOW
BRENDA E+LZABETHTCiRRES !)!AZ
dd NOTARY PUBS IC
STATE OF COLORADO
NCFVW tQ 201212M7
Duty COMmisdm EVInm October 12, 2020
201801814
Witness m and and official seal.
Nota i
OWNER OF LOT 90:
Stephen D. Johns
STATE OF Q d }
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COUNTY OF }
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Date
The foregoing instrument was acknowledged before me this day of J d h U
2018 by Stephen D. Johnson. '
My commission expires: 901 With yand and official sea
MARSHALL L. RAY
NOTARY PUBLIC
STATE OF COLORADO
WTAW 10 20154021407
My Commission Expires June 1. 2019
201801814
Notary Public